Fueling Lawsuits

Rachelle Peterson

Last week, seven Harvard students filed a lawsuit against their alma mater for declining to divest from fossil fuels. The suit, Harvard Climate Justice Coalition v. Harvard, alleges that by investing in fossil fuel companies whose products contribute to climate change, the college violates its duty to advance the public good and is guilty of harming the planet, funding climate change denial, and undermining both the graduates’ quality of education and their job prospects.

The students, members of Harvard Climate Justice and its parent organization, Divest Harvard, accuse Harvard Corporation and the Harvard Management Company of 1) “mismanagement of charitable funds” and 2) “intentional investment in abnormally dangerous activities.”  The suit asks the Suffolk County Superior Court in Massachusetts to force President Drew Faust and the college’s officers to sell the college’s endowment holdings in fossil fuel-based companies.

 On the first count, the suit charges that Harvard’s investment in the fossil fuel industry ignores its charter to promote “the advancement and education of youth” and instead contributes

To the current and future damage to the University’s reputation and to that of its students and graduates, to the ability of students to study and thrive free from the threat of catastrophic climate change, and to future damage to the university’s physical campus as a result of sea level rise and increased storm activity.

The second charge, “intentional investment in abnormally dangerous activities,” avers that investing and making possible the burning of fossil fuel inevitably contributes to climate change, the harms of which outweigh the short-term private gains of growing the endowment.

Why go so far as to sue the college? “I think the bottom line is when you're fighting for the future of a livable planet, you have to use all the tools available,” Harvard law student and plaintiff Kelsey Skaggs told the Crimson. “We have an obligation to do everything that we can.”

They’re also doing everything they can to save their movement. Divest Harvard launched to great attention in 2012 as one of the first fossil fuel divestment campaigns in the country, even before Bill McKibben’s Do the Math tour catapulted the divestment issue into the spotlight. Initially the student body voted overwhelmingly in favor of a petition for the board to divest.

But the movement has struggled since then. The Crimson published a series of op-eds criticizing divestment as “unwarranted” and not “feasible or philosophically sound.”  Last fall, President Faust officially announced the board’s opposition to divestment, citing the financial costs to Harvard’s educational programs and the inappropriate politicization that divestment would introduce into the endowment. In response, Divest Harvard has turned to increasingly desperate publicity stunts. In March, students doggedly followed and rankled President Faust in a video subsequently posted to YouTube; in May they blockaded her office and celebrated the student arrested for obstructing an entrance; and now they’ve taken their college to court—a move the Crimson headlined as “counterproductive” to constructive discussion. 

Nationwide, the divestment movement has been stronger on rhetoric than on concrete gains. Harvard’s tepid reception to divestment mirrors the national climate, as only thirteen American universities have actually divested, though more than 400 have active student campaigns.  American University trustees last week rejected divestment after a semester of heated student agitation there. At Bowdoin College, where Bowdoin Climate Action has been urgently calling for divestment to no avail, the Bowdoin Orient leveled a harsh criticism against the campaign and published a testy editorial revealing that Bowdoin Climate Action had significantly inflated the numbers of signatures it claimed on a student petition calculation of student support.

Strong rhetoric, though, as we at NAS have been warning for some time, is the real power of divestment campaigns. The campaign aims more at building political resentment against the fossil fuel industry than at financially threatening its shareholders. “We do not expect divestment to have a financial impact on fossil fuel companies,” Divest Harvard students wrote at The Nation last fall when President Faust announced Harvard’s plans to not divest. “Divestment is a moral and political strategy to expose the reckless business model of the fossil fuel industry.” Thus the students associated with the lawsuit have taken the unusual step of building a website to publicize their suit, where they note that even if they lose their case,

We hope our lawsuit will galvanize climate activists on campus and elsewhere. … At the very least, we hope to contribute to the evolution of legal remedies to global warming.

Losing their case looks likely. Even the New York Times—generally favorable towards divestment—acknowledged that one of the suit’s charges, “intentional investment in abnormally dangerous activities,” is “unusual” with “no apparent precedent in law.” 

And it’s unclear exactly how the students have legal standing to suit. The case lists several creative reasons, but none hold much legal water: “Investment in fossil fuel companies directly supports climate change denial,” which interferes with the Harvard Climate Justice’s mission to educate students about climate change and to advocate for alternative energy. That is, the group is harmed because Harvard happens to hold stocks in some groups who disagree with their opinions.

These seven students also find that their “enjoyment of Harvard University’s academic resources and scholarly environmental is damaged” by Harvard investing in fossil fuel companies. Likewise, they experience “a chilling effect on academic freedom” and on faculty members’, students’ and administrators’ willingness to discuss climate change. Harvard’s investment policies make impossible, apparently, an “open scholarly environment.”

Finally, the suit accuses Harvard’s investment policies of degrading the quality of education and jeopardizing students’ career prospects. Plaintiffs Alice M. Cherry and Kelsey C. Skaggs, for instance, law students who intend to become environmental lawyers, are “impeded by fossil fuel companies’ promotion of scientific falsehoods,” which “stymies efforts to use the law to address climate change.” Talia K. Rothstein, an undergraduate studying history and literature, finds that because fossil fuel companies “distort academic research,” Harvard’s investment “contributes to the diminishment of Plaintiff Talia K. Rothstein’s education.”

The suit also includes “future generations” collectively as an eighth plaintiff.

The Harvard case presages what may lie ahead as the anti-fossil fuel movement presses onward with its plans to demand stricter carbon regulations and dump gas and oil investments. Bill McKibben’s environmental advocacy organization, 350.org, which helps to fund student divestment campaigns, including Harvard’s, has set aside this fall semester to build student support for divestment, tightening down on controversial high-profile actions and instead encouraging campaigns to develop allies among campus communities. The Divestment Student Network has been seeding grassroots efforts over the past few months, holding seven training sessions across the country for campus divestment leaders, ramping up an alumni divestment network to capture the activist skills of graduates who were involved in divestment campaigns, and making in-roads to faculty members who might support divestment. Harvard Climate Justice’s lawsuit is the first harbinger of what divestment campaigns intend to unleash in the spring, when activists return to campus prepared to sit in, stand in, teach in, and perhaps even sue their way to divestment.

That schedule of activism—more than Harvard’s investments in fossil fuels—poses the real danger to students’ academic educations.



Photo: Widener Library by Joseph Williams / CC BY (edited)

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