Causation. In the social media cases, plaintiffs alleged injuries, which if proven, could be be traced to increased time spent online. Although one commentator has said that proving emotional injury to an individual can be harder than proving other kinds of personal injury, the Attorney General in the New Mexico UDAP case did not need to show this. It needed to prove that the platform “misled” its users about online safety – a false advertising theory that does not require any medical testimony.
By contrast, the climate cases involve a more complicated causal chain. Although consumers indisputably used fossil fuels and were also allegedly injured by climatic events, causation depends on climate science. Fossil fuel combustion yields emissions of carbon dioxide, which in turn exacerbates the greenhouse effect that warms the planet. In turn, this is believed to increase the number and intensity of storms. All of these impacts are debated because the models are large and imprecise. Even if a plaintiff can surmount these formidable hurdles, it must then show the likelihood of harm from the enhanced storm activity. Was Hurricane Maria’s power enhanced by global warming? Would the hurricane have also occurred or been as bad in a world free from fossil fuel burning?
By contrast, internal documents in the social media cases showed the social media giants grappling with design decisions that either increased or decreased user time spent online. The efforts were measured and documented. By contract, a hurricane might or might not have occurred and might have been just as bad with less fossil fuel burning. How much different the hurricane might be in the “but for” world, one can only imprecisely model. Again, whether citizens would have guarded sufficiently against a “but for” hurricane depends on many factors.
The EPA’s Endangerment Finding. Augmenting the lack of a direct linkage between bad weather and injury, the U.S. EPA recently revoked its “Endangerment Finding,” under which it had previously asserted jurisdiction to regulate carbon dioxide under the theory that carbon dioxide gas (a byproduct of burning fossil fuel) is a “pollutant” that can endanger public health. One can readily see why this finding had been very bad for defendants.
On March 12, the Service Employees International Union (SEIU) sued the EPA, seeking to overturn the latest EPA action. SEIU v. EPA, No. 26-1051 (D.C. Cir., May 12, 2026). Twenty-four “blue states” filed a similar petition about a week later. These entities joined a coalition of activist groups petitioning the court for review. Several intervenors, such as the American Petroleum Institute, have also joined. Thus, the issue is teed up for judicial review.
Should the D.C. Circuit grant the petitions and determine the EPA erred, the underpinnings for consumer litigation could be bolstered. No matter which party prevails, this issue will likely head up to the Supreme Court.
In climate litigation. if Plaintiffs get favorable decisions regarding Endangerment, they might argue that the EPA has found that fossil fuel burning produce carbon dioxide, which has been found by the government to endanger public health. This could bolster the plaintiffs’ litigation positions. On the other hand, if the Courts uphold the EPA’s revocation of the Endangerment Finding, further US private complaints would not be able to cite that finding in support and might be deterred. Defendants are also looking for a favorable basis on which to assert preemption.
3. U.S. Standing Doctrine. According to a 2025 report by the London School of Economics, over 70% of completed climate cases worldwide have favored plaintiffs. As of 2025, over 3,000 cases have been filed across the world, achieving what the authors characterize as “increasing success.” In the United States, 164 cases were filed in 2024. The United States case results are decidedly less plaintiff-friendly. That may be due to our rigorous conception of standing, a constitutional concept. In Europe, states may sue one another for violations of obligations owed to the international community as a whole (so-called erga omnes), If the international push continues, corporate defendants will be forced to decide whether to comply with legal decisions on a worldwide basis.
4. Consumers Dislike Big Tech More. Another meaningful difference? The U.S. and government currently seems to prefer attacking “Big Tech,” while leaving “Big Oil” alone. This is a new phenomenon. Big Tech revenues and valuations have been outstripping those of Big Oil for years, and although Big Oil tends to profit during times of crisis, the Big Tech revenues are more consistent. Big Tech is thought to have developed largely free of regulation, while Big Oil is intensively regulated.
5. Online Safety Advocates. A new genre of activist has emerged to push the anti-Big Tech agenda: the online safety advocate. Although environmental activists have attacked Big Oil radar for decades, the online safety advocates are now gaining strength. Moreover, consumers have direct experience with social media, and while they do purchase fossil fuels for their cars and homes, many do not readily link use of fossil fuels to warmer climate. Individuals are notoriously bad at detecting climate trends, so the earth as a whole may gradually warm overall, but if the winter is cold for one year where they live, they are more inclined to ignore climate change. By contrast, they and their children use social media every day.
6. Societal distrust. Consumer trust in Big Tech is eroding rapidly. Perhaps this is because consumers are repeatedly and regularly exposed to the online environment where falsehoods and scams seem to flourish. Moreover, consumers are regularly exposed through media to the activities of the billionaire “techie” class such as Zuckerberg, Bezos and Musk. Comparatively few people, however, could pick an oil company CEO out of a lineup. The tech CEOs are now celebrities and have generally low favorability ratings.
Moreover, right now, every new enforcement initiative from the Executive Branch seems to target Big Tech, while comparatively few are aimed at Big Oil. The signals from the federal and state governments exert a powerful social influence. In short, with governments putting their thumb on the scales, it is more fashionable now to sue Big Tech than to sue Big Oil.
