Taking the Climate Change Battle to Those Who Got Us in This Mess
Carbon dioxide has a strange property. It transmits visible light but it absorbs the infrared radiation which is emitted from the earth. Its presence in the atmosphere causes a greenhouse effect [....] It has been calculated that a temperature rise corresponding to a 10 per cent increase in carbon dioxide will be sufficient to melt the icecap and submerge New York. — Reknowned Physicist Dr. Edward Teller addressing the American Petroleum Institute on its 40th birthday in 1959. Significant temperature changes are almost certain to occur by the year 2000, and these could bring about climatic changes. [...] there seems to be no doubt that the potential damage to our environment could be severe. [...] pollutants which we generally ignore because they have little local effect, CO2 and submicron particles, may be the cause of serious world-wide environmental changes. Report entitled "Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants" presented to the American Petroleum Instutute based on studies it commissioned Stanford Research Institute to conduct.
What if you managed a large company and discovered that your primary products would ultimately create a devastating planetary apocalypse if it was sold and used as intended for another few decades. Would you reveal what you knew or cover it up, lie about it, try to stop anyone from finding out and discredit those who did learn the truth and talked about it?
On April 17, Boulder County, Colorado; the city of Boulder; and San Miguel County, Colorado, filed suit against two oil companies and their subsidiaries. The charge is for “causing, contributing to and exacerbating climate change” and for having “already harmed Plaintiffs’ property and impacted the health, safety and welfare [of] their residents.” This is just one of many different lawsuits filed in the United States in the past several years that attempt to take on those responsible for leading the country down this path to the devastating effects of climate change. Some, like this one, have been filed against the oil companies themselves for their role in spreading greenhouse gas emissions into the air and toxic pollutants into the waterways and the ground. Some have been filed against the federal government for aiding and abetting the fossil fuel enterprises and for ignoring its constitutional responsibility to keep us safe.
The logic behind these suits involves real damage to our collective health, safety, rising waters along the coastlines, changes in weather patterns, drought and more – all coming as a direct result of the actions of the oil companies and both action and inaction on behalf of the U.S. government. They are being taken seriously in a way that earlier suits on a similar subject have not been. They are also collectively building a momentum and pressure that appears to be slowly changing the tide of public opinion and forcing the fossil fuel companies into a corner where they may finally have to do something.
The Children’s Crusade
One of the earliest of these actions is the case formally known as Juliana v. U.S., No. 6:15-cv-01517. It was filed in the U.S. District Court in 2015. The lawsuit began with 21 children suing the government in 2015. It asserted that because of specific affirmative actions by the U.S. government – actions spanning over a half century, including continuing to support the growth of the fossil fuel industry – the U.S. government had with full knowledge passed legislation and taken other steps that were directly responsible for worsening climate change. Those actions also ended up with the United States producing an estimated 25% of the world’s carbon emissions. The lawsuit further asserted that because of those actions, the children’s constitutional rights “to life, liberty and property” were violated and that the government failed to protect essential public trust resources. Note that in this case it was only the U.S. government that was on trial. Knowing they would likely get pulled into the arguments, several oil companies originally filed briefs in support of the government’s side of the case. As the case developed further and it became clear that helping out in this way was riskier than mostly rooting from the sidelines, those oil companies withdrew their direct engagement in the case.
After the case had already withstood one attempt by the Obama administration to be dismissed in 2016, it was proceeding for trial at increasing speed. The Trump administration, led by a President who had once referred to climate change as a hoax, filed a U.S. government petition for a writ of mandamus in the case. Trump’s legal team’s argument then was that the federal judge in Eugene, Oregon, who had previously refused to dismiss the case in November 2016, had exceeded her authority as a judge. They said this involved policy matters that the President and the Congress have full authority to handle and for which the judge had no authority.
This step resulted in the case going to the U.S. District Court of Appeals in San Francisco in an effort to respond to yet another attempt to have the case thrown out.
The plaintiffs in the case responded to court requests regarding the writ of mandamus on August 28, 2016. Eight amicus briefs were also filed with the court in support of the youth plaintiffs. The San Francisco U.S. Court of Appeals, which heard that appeal, decided against the Trump administration. In the three-judge panel’s unanimous decision released on March 7, the court said the issues the Trump administration was concerned about would be “better addressed through the ordinary course of litigation.”
Julia Olsen, the lead attorney representing the children’s group in the case, said the decision means there is a full “green light for trial.” She said in a statement that she would ask for a trial date in 2018 “where we will put the federal government’s dangerous energy system and climate policies on trial for infringing the constitutional rights of young people.”
Besides the trial date, there are two other major issues that will need to be addressed in the case soon.
One involves whether certain current and former government officials can now be questioned in depositions for the case. One of those officials, whose testimony the children most wanted to hear from, is Rex Tillerson, most recently Trump’s former U.S. Secretary of State but also formerly the chairman and chief executive officer of Exxonmobil Corporation plus the head of a major petroleum industry trade group. When the first deposition request was issued to Tillerson earlier in the case, that request was denied because he was in the middle of being confirmed for his short-lived role in the Trump administration.
The second question is whether Trump and the U.S. Justice Department may want to escalate the writ of mandamus decision to the U.S. Supreme Court.
So far, there has been no comment from the U.S. Justice Department regarding the U.S. Court of Appeals’ latest ruling.
For the moment, though, since there is no other obvious cause for appealing it without a decision having been made for either party, it appears this case will go to trial likely sometime in the second half of 2018. It is currently scheduled to go to trial on October 29.
The outcome of this case will be significant, as it may end up ruling not just against the government but on what the constitution truly requires of the federal government in looking out for the welfare of its citizens.
The Oakland – San Francisco Lawsuit
Last year, Oakland and San Francisco sued fossil fuel companies directly for their part in destroying the environment via global warming and the damage it has caused coastal communities.
The two California cities filed their lawsuit claiming that BP, Chevron, Conocophillips, Exxonmobil and Shell have knowingly destroyed the environment. According to the litigation filing, they did so by continuing to drive higher and higher levels of oil and gas production “despite knowing – since at least the late 1970s and early 1980s if not earlier – that massive fossil fuel usage would cause global warming.”
The damage the two cities are already dealing with now include rising temperatures, drought, extreme weather conditions, rising waters along the coastlines and associated flooding. These cities, like many others in the United States, are already paying the price for fossil fuel emissions-related global warming – and they want those who caused it to be held accountable.
As one might expect, the fossil fuel companies disagreed strongly with the claim and took great pains to fight the litigation. Based on the strength of the filing in the case, however, so far, this litigation is moving ahead at full speed.
The next step in the case, ordered by U.S. District Court Judge William Alsup, was a first-ever public legal hearing where both sides in the case were allowed “to
conduct a two-part tutorial on the subject of global warming and climate change.” That tutorial was held in mid-march.
As the filing in the case explained about the tutorial, “The first part will trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes and global warming. The second part will set forth the best science now available on global warming, climate change, glacier melt, sea rise and coastal flooding.”
Each side in the case was given an hour to present on each part of the tutorial. Attorneys as well as experts designated by them were also allowed to testify.
Though the tutorials were not the basis for any final rulings and instead mostly to qualify who would be allowed to testify in the final case, this was still a critical step in the long-term litigation process against the fossil fuel company empire. In requiring the parties in the case to present their positions, “the court is forcing these companies to go on the record about their understanding of climate science,” said Marco Simons, Earthrights International general counsel. This has been something oil companies “have desperately tried to avoid doing.”
The testimony was given, with the main surprise of the event being that the fossil fuel presentations seemed to acknowledge – for the first time in a lawsuit – that they had been aware of some of the issues regarding the impacts of greenhouse gas emissions from their products. Analysts watching the action suggested part of the reason for this admission was to set up for something later. That “something later” could be shifting the nature of the fossil fuel companies’ legal position to one where it might claim that everybody (meaning the public as well) knew greenhouse gas emissions are a major cause of global warming. And if “everybody knew,” it’s hard to pin the damages on the fossil fuel companies.
If that logic sounds odd, consider what the tobacco companies so expertly did when it became clear they had prior knowledge of linkages between tobacco smoking and heart disease, lung disease and numerous forms of cancer. They pivoted the argument to one where “everybody knew” (even though they didn’t) that smoking was harmful and yet smoked anyway. So those suing on behalf of those sick, dying or dead from smoking could not possibly be held responsible. Now that the hearing is over, the judge will use the information to determine which of these experts can testify at the regular trial
New York City Versus the “Big 5” Publicly Traded Oil Companies
Not to be outdone by its West Coast counterparts, on January 9, 2018, the government of New York City sued BP, Chevron, Conocophillips, Exxonmobil and Royal Dutch Shell.
Similar to the previous case, this one asserts that global warming is causing New York City to spend “billions of dollars” to handle the problem of sea water rising on its coastlines and infrastructure, such as flooded subways, and to protect its citizens from the impacts of global warming. Specifically, the suit says, “To deal with what the future will inevitably bring, the City must build sea walls, levees, dunes and other coastal armament and elevate and harden a vast array of City-owned structures, properties and parks along its coastline.” The documents filed in the case go on to say that “the costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.”
As for why the oil companies should be held accountable for all this, the suit notes that the five companies named as defendants collectively produced about 11% of all greenhouse gas emissions tied to global warming. New York City’s attorneys also charge that these companies and the entire fossil fuel industry have been aware of the consequences of their actions for a long time but tried to hide that knowledge from the public. As for damages, the suit says, “In this litigation, the City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat.”
This particular case is still young, and not much more information is publicly available on what is happening on it at this time.
The Investigations by Massachusetts, New York and Texas into What Exxonmobil Knew and How It Hid Information
Although it is not a lawsuit yet, the Massachusetts Attorney General, in parallel with New York Attorney General Eric Schneiderman and the state of Texas, is currently investigating whether Exxonmobil
suppressed climate change research results from public view.
The smoking gun for this investigation started in March 2016 after the Los Angeles Times and Insideclimate News broke early information showing that Exxonmobil scientists knew about greenhouse gas emissions’ effects on global warming going back to the 1970s. Those articles said that Exxonmobil’s response to what it learned was to hire scientists and lobbyists and use its vast monies to launch a major misinformation campaign about it rather than share it publicly for the greater good.
Exxonmobil fought back against the Civil Investigative Demand (CID) both in Texas and Massachusetts. It filed in court to have the CIDS quashed. It also attempted a similar action in New York.
Exxonmobil lost its first major battle of this triad with a decision in a New York court at the end of March 2018. Then it was ordered it must comply with New York’s request for information.
Then, on April 13, Exxonmobil lost its attempt to stop the Massachusetts part of the investigation. In a ruling delivered on that date from the Massachusetts Supreme Judicial Court, Associate Justice Elspeth Cypher wrote, “Exxon protests that its franchisees have nothing to do with climate change and have played no part in disseminating those statements, so the attorney general’s requests cannot ‘arise from’ Exxon’s franchise system. Bearing in mind the basis for the C.I.D. and the attorney general’s investigation, we disagree.”
When this latest ruling was announced, state Attorney General Maura Healey was clearly pleased by what seemed an ever-stronger set of decisions pushing back against Exxonmobil. In a prepared statement on the matter, she said: “For the second time this month, Exxon’s scorched earth campaign to block our investigation has been entirely rejected by the courts. In its decision today, our state’s highest court affirmed that Exxon is subject to our laws and that our office has the authority to investigate. Now Exxon must come forward with the truth, what it knew about climate change, when, and what it told the world. The people of Massachusetts – and people everywhere – deserve answers.”
The Colorado Litigation
The most recent of these suits is the one filed by three Colorado governmental organizations: the City of Boulder, the Board of County Commissioners of Boulder County, and the Board of County Commissioners of San Miguel County. The defendants in the case are Suncor Energy (U.S.A.), Inc., Suncor Energy Sales, Inc., Suncor Energy, Inc. (these three together are known as the “Suncor Defendants”) and Exxon Mobil Corporation.
According to the agencies who filed this case, it is unique because it is the first such case filed by an inland state. Past lawsuits by governmental agencies have emphasized issues such as sea level rise as one of their major problems. This one is different, focusing on the broader implications of climate change on virtually any place.
In the suit, the plaintiffs represent themselves as “local government entities in the state of Colorado that face substantial and rising costs to lessen the impacts of human alteration of the climate (“climate change”) on their property and to protect the health, safety and welfare of their residents.” They are suing Exxonmobil and the Suncor Defendants “for the substantial role they played and continue to play in causing, contributing to and exacerbating climate change.”
They introduce the case by noting that Colorado’s Governor and General Assembly are on record as saying that “climate change will bring more (and more serious) heat waves, wildfires, droughts and floods to the State, as well as myriad other consequences caused by rapidly rising temperatures.” They go on to say that “these impacts have already harmed Plaintiffs’ property and impacted the health, safety and welfare of their residents. The damages will only multiply as climate change worsens.”
The damages are creating an enormous bill for the plaintiffs, who are doing everything they can to mitigate these problems. So far, they have had to absorb the costs themselves, something that in turn must be passed on to taxpayers.
That, they assert, is wrong. The plaintiffs assert that they and their taxpayers not only cannot pay all these costs but also that it should not be their full responsibility. Instead, they say, “the costs should be shared by the Suncor and Exxon defendants because they knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.”
As in the other cases, it is not just the heinous nature of the act of causing climate change that is being alleged. It is also that the fossil fuel companies knew full well the damage they were causing and that they deliberately lied to the public about the dangers of greenhouse gas emissions.
As evidence of that knowledge, the Colorado agencies note the Stanford Research Institute report presented to the American Petroleum Institute in 1968. The report notes that carbon dioxide emissions produced by the burning of fossil fuels for energy would create planet-wide warming and melt the ice caps and “may be the cause of serious world-wide environmental challenges.” The companies involved here and the industries they served were therefore aware of the damage they would be inflicting on the world over 50 years ago.
The lawsuit also references the 2017 National Climate Assessment, a U.S. federal government report. In that report, the government agencies involved noted that “this period is now the warmest in the history of modern civilization.” That report notes explicit climate effects such as the presence of more frequent and severe heatwaves, earlier spring melt and reduced snowpack, which affects water resources especially in the western United States (including Colorado), drought and increased incidences of extreme weather events. All of this has major implications for Colorado – and the United States as a whole. (See the Trillions analysis of the third interim draft of this report, “The Climate-change Report Trump Did Not Want You To See,” published September 3, 2017, on Trillions.biz.)
As for the role of the defendants in contributing to global warming, the suit references the Suncor Defendants being “responsible for the emission of approximately 2 billion tons of CO2 into the atmosphere.” The suit further explains that “based on the fossil fuels it has brought to market, Suncor is one of the largest sources of historic and present-day GHG emissions.” It also notes that a major part of Suncor’s crude oil comes from tar sands. That means that “Suncor’s fossil fuel products produce a proportionally greater amount of GHG emissions than most fossil fuel companies do.”
Exxonmobil was also hit hard on its contributions to greenhouse gas emissions. As noted in the filing, “historically, Exxon supplied nearly 10 percent of global oil demand.” That included the production of “billions of barrels of oil, trillions of cubic feet of natural gas and millions of tons of coal” since the 1960s. As for what that converts to in terms of greenhouse gas emissions, the suit states that “based on the GHG emissions that can be traced solely to fossil fuels produced by Exxon between 1988 and 2015, it is responsible for nearly 16 billion tons of carbon dioxide.”
The suit closes by stating the following conclusions, all backed up by detailed facts in the filing:
1. “The climate has been altered because of fossil fuel use.”
2. “The impacts of a climate altered by Defendants’ conduct are being felt in Plaintiffs’ communities.” (Examples cited include rising temperatures and extreme heat, shifts in precipitation patterns and water availability, increased risks of drought, increased risks of wildfires, increased risks to forest health and increased threats to public health. For each situation, the filing goes on to detail specific problems each plaintiff has had to deal with because of climate change as well as many of the costs involved in handling them.
3. “Defendants knew fossil fuel use would result in dangerous changes in the climate.”
4. “Defendants substantially contributed to, accelerated and exacerbated climate change by promoting and selling huge amounts of fossil fuels.”
5. “Defendants concealed and misrepresented to the public what they knew about climate change and the dangers of continued and increased fossil fuel use.”
In return for a finding in their favor, the plaintiffs are demanding “monetary relief to compensate Plaintiffs for their past and future damages and costs to mitigate the impact of climate change, such as the costs to analyze, evaluate, mitigate, abate and/or remediate the impacts of climate change.”
At this point, the case has only been filed, with no responses received from any parties as of yet. The history of the other litigations suggests this one will be taken seriously and that questions such as a lack of standing or illegitimacy of the issues being raised will be rejected. Implications and What to Expect Next
One common thread in these recent cases is the assertion that the fossil fuel companies have known about the dangers of greenhouse gas emissions on long-term climate change – as well as how fast climate change was likely to happen – for a long time.
There is now much leaking of information about this from the fossil fuel companies themselves. One of the most often cited of these is the article entitled “Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants,” written by Elmer Robinson and R.C. Robbins and published for the American Petroleum Institute in 1968. In it, the writers noted then that “man is now engaged in a vast geophysical experiment with his environment, the earth,” by pushing carbon dioxide into the atmosphere in such quantities through the burning of fossil fuels. They warned in their paper then that when “the earth’s temperature increases significantly,” many dramatic climate change events will begin to take place, such as “the melting of the Antarctic ice cap, a rise in ocean levels, warming of the oceans and a decrease in photosynthesis.”
The oil companies realized how bad things were and even predicted the current global warming rate in papers published over 30 years ago. They also went out of their way to hide that information from the public, even while they were reaping huge profits while the earth and everyone on it was being positioned for the horrible future impacts of climate change. More about what the oil companies knew and how they went about hiding that truth is outlined in “Big Oil – Big Lies,” published in Trillions on June 6, 2016.
The lawsuits are now making use of the leaks as a major part of how they are demonstrating the liability of the fossil fuel companies involved.
Another trend is that the lawsuits are increasing both in number and in the seriousness they represent to the fossil fuel industry as a whole. Where formerly the cases filed about greenhouse gases and global warming were typically from small communities and on the common law “public nuisance” argument, these are instead major filings taking both the government and the fossil fuel companies to task for actual conspiracy to hide the truth of what they were doing and proceeding anyway. They are also from deeperpocketed organizations who will not be intimidated by expensive lawyers and complex legal maneuvers from the other side. As for the implications of all this, Kassie Siegel, director of the Climate Law Institute, a legal campaign focusing on protecting the environment from climate change, said in a recent interview: “A few pebbles are turning into a landslide. It shows the tide is turning against fossil fuel producers.”
That may be, but how that tide will proceed as the cases move forward is far from guaranteed to settle against the fossil fuel companies. This is especially an issue because of the complex legal and scientific concerns involved. One can expect both the federal government and the fossil fuel companies to fight back strongly against the charges, both in actual court and via media campaigns designed to alter public opinion on the matter. It will take concentrated effort from all plaintiffs and the citizens of the United States to stay focused and avoid being sucked into another misinformation campaign from the fossil fuel companies.
In a capitalist society, a publicly traded company must pursue short-term profit regardless of longterm consequences to the public or environment. If it doesn’t, its management can be sued by stockholders for not fulfilling the company’s primary purpose of enriching shareholders.
If the managers of the oil industry had done their moral duty after they knew the consequences of their
product and passed on the information to the public, they would have been quickly fired and likely the public would not have paid much attention – just as few of us paid any attention when we were told about global warming and climate change in the 1980s and most of us are still not really doing anything about it.
Many Americans care so little about their environment that they eagerly pay much more for gas guzzling pickups and SUVS to the point where Ford Motor Company announced that it would stop even making sedans because so few people bought them.
Honda stopped selling its 70 mpg gallon Insight hybrid in 2006 because so few people would buy them.
Americans bear the greater responsibility not just because we are the worst energy wasters on the planet but also because we support a society in which we know that corporations are lying to us and harming us and yet we continue to invest in their stock and buy their products.
Oil companies didn’t radically alter our planet’s atmosphere. We did. If no one purchased the products that come from oil, it would still be safely in the ground where it belongs.
Knowing what it knew, the oil industry could have invested in cleaner forms of energy, but these weren’t profitable in the short term and shareholders would not have supported them.
If we are going to blame the oil companies, then we should also blame the auto manufacturers who colluded with the oil industry to build the least efficient vehicles while suppressing new technology. They also gave us the gas guzzlers that most Americans wanted to buy.
And we can blame the politicians we voted for who allowed public transit to be dismantled to force people to buy cars and burn gas.
While we can blame capitalism as a cause, if the United States was more socialist and energy had been nationalized, as it has in some countries, the driving force would not have been corporate profits but cheaper energy and the cheapest form of energy would have dominated. Oil was the cheapest form of energy for a long time, so we would have likely continued to burn oil until it became too expensive, even if we knew that it would cause a future disaster.
Suing ourselves for causing global warming and climate change is somewhat pointless – just as suing oil companies won’t undo the damage we have caused. However, oil companies didn’t just conceal what they knew; they deliberately lied to us. That is definitely wrong, and they do need to be brought to justice for that.
Another good reason to hold oil companies accountable is because any penalties will be passed on to consumers in the form of higher fuel prices and that could encourage more people to get off oil and into an electric vehicle.
Our present circumstances should compel us to not only seek justice and accountability but to evolve and develop a better culture that does not sacrifice the future for short-term profits and in which new technology is analyzed thoroughly for its potential future harm before being unleashed and integrated into our society.
The AMERO can help us develop a new, more sustainable economic model that is less reliant on predatory capitalism and profit over people.
Trillions will continue to follow these cases in detail as new developments emerge. With the first of these cases likely going to public trial for the first time this year, one can expect much in the way of fireworks from all sides of the arguments.