A Counterproductive Lawsuit

On Wednesday, seven Harvard students, all members of Divest Harvard, filed a lawsuit asking for a court to force Harvard to “withdraw” its holdings from the fossil fuel industry. The lawsuit’s legal argument is based on the idea that Harvard is violating its original charter and its “fiduciary and charitable duties as a public charity and nonprofit corporation” by investing in “abnormally dangerous activities,” notably the fossil fuel industry. This line of reasoning is tenuous and does not contribute to the kind of dialogue necessary for Harvard to better combat climate change.

Divest Harvard serves an important role in calling attention to climate change itself, but we continue to believe that divestment is not the best way for Harvard to address the phenomenon. Even if the University were to divest from fossil fuels, it would continue using those fuels in day-to-day business, and other entities would likely replace Harvard as investors—investors that may be less likely than Harvard to pressure the industry in a more climate-friendly direction.

The recent lawsuit is tenuous at best as a move to trigger divestment on legal grounds. According to the New York Times, one of its chief legal arguments cites “mismanagement of charitable funds,” based on Massachusetts case law allowing those with “special interest” in an organization to sue based on mismanagement of the organization’s funds. Yet there does not seem to be precedent to rule for such a suit based on investment in the fossil fuel industry, and in any event, Harvard’s endowment appears financially sound.

Another chief legal argument in the suit is based on a tort with no precedent. This tort, as the plaintiffs present it, involves “intentional investment in abnormally dangerous activities.” The fact that this tort does not exist is enough to call into question the value of this claim, but it also seems to set a fairly drastic precedent—if a court were to rule against Harvard on these grounds, it would seem that any organization investing in fossil fuels would also be liable to such a lawsuit. To sue Harvard on these grounds when so many other institutions have similar investments seems less than tenable.

Of course, the lawsuit is more than the sum of its legal claims. One of the plaintiffs claimed that part of the goal in bringing the suit is to bring greater attention to the issue. In general, we support greater discussion of climate change. We are not convinced, however, that this suit will spark conversation on the topic in a constructive way. A plaintiff’s acknowledgement that a “sympathetic judge” will need to be sought to even consider the case underscores this worry. The reasoning of the suit could appear so tenuous as to make individuals believe that divestment itself, or even climate change activism, is a tenuous idea. Frivolous litigation is not what the wider climate change discussion needs.

While divestment may not be a desirable course of action, activities that spark constructive discussion about climate change should be welcomed. This lawsuit does not seem like such an activity.