New research proposes a potentially transformative approach to climate litigation. Instead of asking courts to determine which company's emissions caused which climate-related harms, a challenge that has hindered climate lawsuits for decades, the study argues that plaintiffs should focus on whether fossil fuel companies profited from allegedly misleading the public and policymakers about climate risks. Drawing on evidence that has surfaced in climate litigation, including internal industry documents and decades of public messaging campaigns, the authors propose using the legal doctrine of unjust enrichment to seek recovery of profits allegedly earned by delaying climate action. The approach could offer courts a new framework for addressing corporate accountability while avoiding both difficult causation questions and procedural barriers that have often prevented emissions-based climate claims from moving forward.

For more than two decades, climate lawsuits have faced an uphill battle in American courts. Plaintiffs have struggled to prove that specific companies caused specific climate harms, while defendants have successfully argued that climate policy belongs to regulators and legislators rather than judges.
A new article argues that the problem may lie in the legal theory itself.

In Climate Lies and Unjust Profits, published in the Emory Law Journal, Professor Yotam Kaplan and Niv Meyerson from the Hebrew University Faculty of Law, Professor Vanessa Casado-Pérez of Texas A&M University School of Law, and Professor Yael Lifshitz of King's College London propose a new approach that could fundamentally alter the landscape of climate litigation.

Rather than focusing on greenhouse gas emissions and climate damages, the authors argue that courts should examine whether major fossil fuel companies profited from decades of alleged efforts to mislead regulators, policymakers, and the public about climate science and the consequences of continued fossil fuel dependence.

The article advances an unjust-enrichment framework that asks a different legal question: if companies knowingly delayed climate action through deception, should they be permitted to retain the profits earned during that period?

The proposal arrives at a pivotal moment. Climate-related disasters are imposing mounting costs on governments, businesses, and communities worldwide, while many traditional climate lawsuits continue to face procedural and evidentiary hurdles. At the same time, political divisions have complicated efforts to enact comprehensive climate legislation, increasing the importance of litigation as a tool for accountability.

According to the authors, the proposed framework could help overcome some of the central obstacles that have limited climate lawsuits for years. Because the approach focuses on alleged deception rather than emissions themselves, it avoids many of the causation problems that arise when plaintiffs attempt to connect specific climate harms to particular defendants. It may also help plaintiffs overcome federal preemption barriers that have impeded many climate cases in the United States. Courts have often dismissed claims targeting greenhouse gas emissions on the grounds that such matters are already governed by federal regulation under the Clean Air Act. By focusing instead on alleged fraudulent conduct and the profits derived from it, the proposed framework shifts the legal inquiry away from emissions regulation and toward corporate misconduct. It also redirects attention from environmental losses to corporate gains, relying on long-established legal principles designed to prevent parties from profiting from fraud.

The article draws parallels to the litigation strategies used against the tobacco industry, where lawsuits increasingly focused on deceptive conduct rather than solely on the harms caused by smoking. The authors argue that a similar shift could provide a more effective path for climate accountability.
The implications could extend far beyond legal scholarship. Cities, counties, and states across the United States are currently pursuing climate-related claims against major oil and gas companies. The authors contend that many of those cases already contain elements of the approach they describe, but that courts and litigants have yet to fully recognize the potential of unjust enrichment as a central legal theory.

“Climate litigation has often struggled because it asks courts to resolve extraordinarily complex questions about emissions, regulation, and causation,” said the authors. “Our research shows that a more direct question may be available: whether companies should be allowed to retain profits allegedly earned through conduct that delayed public and regulatory responses to climate change. The law has long recognized that no one should profit from fraud.”

If adopted by courts, the authors argue, the framework could provide one of the most promising avenues yet for addressing corporate accountability in the climate crisis.