The Divestment Lawsuit Against the Harvard Corporation

Mem6By Ted Hamilton—December 9 at 1:01 p.m.

This blog post contains the views of the author alone, and does not necessarily reflect the opinions of the Harvard Environmental Law Review.

On November 19, I and six other Harvard students brought a lawsuit against the university’s governing Corporation to compel it to divest its holdings from fossil fuel companies. Our case, Harvard Climate Justice Coalition v. Harvard is part of the rapidly growing fossil fuel divestment movement, which has already won significant victories in convincing institutional investors to stop supporting the dangerous behavior of the gas, coal, and oil industries. But it’s also an effort to push courts to address climate change, a threat for which legal remedies have proven elusive.

The Harvard Corporation is a public charity bound to serve the public good and to further the interests laid out in its 1650 Charter, including the “advancement and education of youth.” According to the latest SEC filing of the Harvard Management Company, a nonprofit corporation that oversees Harvard’s investments, the university’s direct holdings in fossil fuel companies amount to $79 million, with much more in indirect holdings.

The Corporation, of course, recognizes that the business practices of these companies are incompatible with a secure and healthy future: Harvard, after all, is home to some of the world’s best climate scientists, and its own plans for developing an expanded campus across the Charles River account for impending sea level rise caused by global warming. True to the Corporation’s track record of divesting from such unpalatable industries and business environments as apartheid South Africa, tobacco, and Darfur, President Drew Faust has described climate change as a “serious threat to our future“ and acknowledged that Harvard’s investments play a role in how the university confronts global warming. But still the Corporation has refused to pull its support of fossil fuels, hoping to squeeze a few more dollars out of a dying business model rather than take a principled stand.

Our lawsuit’s claims are predicated upon the stark contrast between this reckless behavior and the Corporation’s responsibilities as a public charity. Harvard’s investments in gas, coal, and oil directly contribute to global warming and its concomitant harms. Our first count alleges that the Corporation is breaching its charitable and fiduciary duties by harming the plaintiffs in their special capacity as Harvard students. Support for climate change and for the fossil fuel industry’s support of scientific falsehoods degrades our university’s academic environment, threatens our future well-being as Harvard graduates, and poses a direct threat to the physical campus we call home. Because these harms are specific to us as students and violate the Corporation’s explicit duties in the Charter, we qualify for a narrow special interest exemption to the Massachusetts Attorney General’s authority to enforce charitable duties.

Our second count is brought on behalf of future generations, who will suffer injuries from increased drought, sea level rise, ecosystem degradation, and other effects of climate change. These injuries are caused by the abnormally dangerous activities of fossil fuel companies, which cannot be abated with the exercise of reasonable care, and by the investments of the Harvard Corporation, which is aware of these effects. By withdrawing its funding of fossil fuels, Harvard would influence other institutional investors to act similarly, mitigating global warming harms to future generations.

Although our lawsuit is focused on the activities of the Harvard Corporation, we have drawn inspiration from litigators attempting to hold municipalities, the federal government, and fossil fuels companies themselves responsible for their contributions to global warming. Climate change is a uniquely multifarious and dangerous threat, and we are confident that the law will accommodate claims that address this reality. We look forward to Harvard’s response to our claims, and we hope that our legal action will help courts finally face up to the dangers of climate change.