Drilled S1Ep7: Campaigns So Successful They've Landed in Court

Hosted and reported by climate journalist Amy Westervelt, DrilledNews.

Featuring: Marco Simons, environmental lawyer at Earth Rights International; Ed Garvey, a former Exxon scientist; Sharon Eubanks, chief counsel at the nonprofit National Whistleblower Center; Matt Pawa, an environmental lawyer at Hagens Berman; Ann Carlson, environmental law professor at the UCLA School of Law; Ted Boutrous, Chevron attorney; and Maura Healey, Massachusetts Attorney General.

Previously on Drilled:

Ben Franta: Among that set of dedicated research centers that are really influential in technology research and training you know future people working in climate, also influencing the IPCC, a majority I would say a majority of funding in those centers comes from fossil fuels.

Amy Westervelt: Most of what we know about oil companies’ social influence campaigns has been dug up over the past five years by journalists. Particularly Neela Bannerjee and David Hassemeyer at Inside Climate News; and Suzanne Rust, who led the investigation at Columbia School of Journalism that was printed in the Los Angeles Times and The Guardian. Independent investigators like Kert Davies and Scott Peterson have also contributed to that knowledge. New Yorker reporter Jane Mayer’s incredible investigative work into the Koch brothers, published in the book Dark Money, has provided key insights, too. But long before any of these investigations kicked off, lawyers were digging up this stuff too.

Marco Simons: They did such a good job that the public is more skeptical of climate change now than the oil companies are.

Ed Garvey: As a means to change the public’s perspective on things, I think they may be very effective. That’s my opinion, just like get the public to say yeah you know what? There really was a lot of damage done. And yeah yeah we’re part of it but we weren’t in the position to make these educated decisions the way that people at Exxon or people at other oil companies were, they were fully aware.

Sharon Eubanks: Not unlike Big Tobacco, the oil companies here, their internal documents make the case for their knowledge and their coverup.

Ted Boutrous: We recognize that global warming is a serious issue. But this kind of lawsuit is counterproductive. And it’s just legally flawed.

Amy Westervelt: More than a decade ago an environmental lawyer named Matt Pawa brought the first suit that tried to hold a company responsible for inaction on climate change. He represented a group of states against a group of utilities in a case known as Connecticut vs. AEP.

He went on to represent some of the country’s first climate refugees, people displaced from the village of Kivalina in Alaska by melting ice caps and rising seas. You can get a sense of Pawa’s passion for using the law to do something about climate from this speech he gave at the Center for the Study of Responsive Law back in 2016.

Matt Pawa: In 2007, the Intergovernmental Panel on Climate Change said that climate change was already killing 150,000 people per year. Nonprofit organizations have put the figure higher at more like 400,000 per year and said that by 2030 it could be killing 700,000 people per year.

Amy Westervelt: Pawa has been litigating against Exxon in particular for well over a decade. Here’s why:.

Matt Pawa: Exxon scientists researched global warming in detail in the late 1970s and early 1980s. The scientists found that the level of CO2—carbon dioxide, the main greenhouse gas—was increasing in the atmosphere. And they said that the overwhelming—their word, overwhelming—opinion of scientists was that the source of this problem is the burning of fossil fuels, their main product. They declared, the in-house scientists in 1982, that “a clear scientific consensus has emerged that a doubling of the carbon dioxide from pre-industrial levels would result in an average global temperature increase of about three degrees Celsius which would be an unprecedented and rapid increase in a mere hundred years.” They said that there was “unanimous agreement in the scientific community that a temperature increase of this magnitude would bring about significant changes in the Earth’s climate.”

Amy Westervelt: Those early cases failed but they did uncover some documentation of what oil companies knew and when, and they enabled lawyers like Pawa to see what worked and what didn’t. In the years since, not only have journalists and activists uncovered documentation of what oil companies knew and when, and what they did to suppress that information, but also science has evolved.

Scientist Richard Heede conducted a comprehensive study of emissions from the industrial revolution to now and was able to connect a majority of CO2 emissions to just 100 companies, which he termed the carbon majors. Other scientists have published new studies too, connecting particular damages to climate change as part of an emerging field known as attribution science.

Bob Kopp at Rutgers has shown the percentage of sea level rise that can be attributed to climate change. From there, then, scientists at Climate Central were able to pinpoint precisely how much of the damage inflicted by Superstorm Sandy was attributable to climate change: $2 billion out of the $12 billion in damages. Peter Frumhoff, at the Union of Concerned Scientists, has also conducted research in this realm. He’s looked at the correlation between climate change and human mortality related to extreme heatwaves. Ironically, the success of the oil companies’ social influence campaigns are a real strength to these cases.

Marco Simons with Earth Rights International is representing a group of cities and counties in Colorado that are suing oil companies to cover the costs of fighting increasingly intense wildfires and other impacts of climate change.

Marco Simons: They did such a good job that the public is more skeptical of climate change now than the oil companies are.

Amy Westervelt: That’s true. Chevron attorney Ted Boutrous has been presenting on behalf of all the oil companies in these suits. It’s a solid pick because there are no documents floating around out there about any climate science Chevron conducted way back when. He regularly cites the industry’s alignment with the Intergovernmental Panel on Climate Change (the IPCC) and instead of contrarian theories he often says things like this:

Ted Boutrous: We recognize that global warming is a serious issue. But this kind of lawsuit is counterproductive. It’s just legally flawed.

Amy Westervelt: Simon says that’s too little too late.

Marco Simons: The oil companies wrapped themselves in the mantle of the IPCC. They are, you know at least publicly, fully on board with sort of established climate science at this point. But their disinformation campaign in years past was so successful that you know, still an alarmingly low percentage of the American public even, you know, agrees that human-caused climate change is happening and that fossil fuels are the cause of that. Let alone with the urgency that we need to address it. So yeah their campaign was unfortunatey incredibly successful. In misleading the public and in delaying by decades the action necessary to avert and respond to catastrophic climate change.

Amy Westervelt: Simons and Pawa and others have brought this second wave of climate liability lawsuits representing cities, counties, and states against the oil companies. Their strategy has shifted. They’re focused more locally. They make use of attribution science and they hammer home the point that information was kept from the public and regulations were actively stopped. In filing these suits in state court rather than federal court, and attempting to hold companies accountable for the financial cost of adapting to climate change—costs currently shouldered by local taxpayers—these suits seem more winnable. Here’s climate law expert Ann Carlson from UCLA explaining.

Ann Carlson: Particularly for those cases filed in California and states like New York, the doctrine of nuisance is very plaintiff favorable and in particular the information that defendants knew that kind of change was occurring and then engaged in concealment efforts and campaign efforts to try to dissuade the public is relevant to the question of whether they are liable for nuisance, so the doctrine is very favorable. You also don’t get into some of the constitutional questions or at least constitutional concerns that some courts raised in the last rounds. None of those kind of withstood challenge. But you don’t get into, for example, a question of whether there’s a separation of powers problem with the courts trying to tell the executive branch what to do, which is one of the arguments the defendants are trying to make.

Amy Westervelt: These cases are proving to be an effective tool for educating the public, politicians, and the courts.

In the case San Francisco and Oakland brought against the top five oil companies—Exxon, Shell, BP, Conoco Phillips, and Chevron—Judge William Alsup ordered a climate science tutorial. He wanted to get an understanding of who knew what and when. There was an overflow room to hold the large crowd of spectators and journalists and the tutorial was covered in every major newspaper. Ultimately Alsup wound up repeating one of the industry’s favorite tales that without fossil fuels we wouldn’t have had the industrial revolution and that the danger caused by emissions is a necessary tradeoff for progress. But there will be other judges. There are a dozen or so active cases right now and more seem to be filed every month. Former Exxon scientist Ed Garvey got choked up talking about watching the country embrace climate denial. He thinks these suits could help change that.

Ed Garvey: As a means to change the public’s perspective on things, I think it may be very valuable. To get the public to say yeah, you know what? There really was a lot of damage done and yeah okay we’re part or part of it but we weren’t in a position to make these educated decisions the way that people at Exxon and people at other oil companies were. They were fully aware that their scientists said this is not a good thing and you need to think about what you’re doing here. Getting it in court and getting it into the news cycle that yeah we’re no longer discussing the science. Now we’re discussing who’s responsible for the damage done. It’s like Okay yeah this really was done to the public, and it was done to the world at large, that the science was disputed when in fact the issues were, to a large degree, resolved.

Amy Westervelt: In addition to the liability suits other types of climate suits are also being filed. The attorneys general of Massachusetts and New York launched fraud probes against Exxon in 2016, which opened up more documentation about the company’s decades-long deception campaigns. Here’s Massachusetts A.G. Maura Healey explaining the impetus for the probes.

Maura Healey: We sent subpoenas to Exxon to ask them a simple question, tell us what you knew when about climate change and the impact that burning fossil fuels is gonna have on the environment, because based on widely reported publicly available information we had concern that Exxon may not have told the truth to the public, to consumers, to its shareholders about what it knew. We sent those subpoenas. They turned around they sued us to try to stop us from investigating this.

Amy Westervelt: The New York fraud probe turned into a full fledged suit in 2018 when interim New York Attorney General Barbara Underwood filed suit against Exxon Mobil for “defrauding investors regarding financial risk the company faces from climate change regulations.” In a press release about the suit, AG Underwood said “Investors put their money and their trust in Exxon, which assured them of the long term value of their shares as the company claimed to be factoring the risk of increasing climate change regulations into its business decisions. Yet, as our investigation found, Exxon often did no such thing. Instead Exxon built a facade to deceive investors into believing that the company was managing the risks of climate change regulation to its business when in fact it was intentionally and systematically underestimating or ignoring them contrary to its public representations.”

In Oregon, attorney Julia Olsen and the nonprofit Our Children’s Trust is representing a group of young people suing the government for incentivizing dependence on fossil fuels rather than acting on climate. In Minnesota, two women who turned off the valves on a natural gas pipeline used a “climate necessity” defense, arguing that they have to do whatever they can to stop climate change. The case never wound up going to trial because the government dropped it. Some have even suggested that a RICO case similar to what brought down big tobacco ought to be filed against oil companies. Sharon Eubanks, the attorney who led that case against the tobacco companies, has been advising on climate litigation recently and sees several parallels.

Sharon Eubanks: Not unlike Big Tobacco, the oil companies here, their internal documents make the case of their knowledge and their cover up. Big Oil knew about the dangers of its products. Just as Big Tobacco knew, Big Oil knew going back to the 1960s. Notably beginning in 1988 when the United States and the world started moving toward policies that might rein in fossil fuel, the industry stance shifted from one of support of mainstream views toward a very aggressive campaign designed to manufacture uncertainty and doubt in the science, that really wasn’t there. Oil and gas, like cigarettes, are products. Like any other products, the companies that produce, market, and sell them are liable for the damages that they cause. There’s nothing unique about that, especially under the circumstances here where they have misled the public about the product’s dangers.

Amy Westervelt: These cases continue to make their way through the courts. Attorneys are digging up more and more documentation and testing a variety of strategies.

The information brought forth in these cases is beginning to sink into the collective unconscious a bit. Where climate change is concerned, the world appears to be waking up again. Next time on Drilled.

Walter Munk: I hope we can all work effectively together to do something about it. It’s a job about as difficult or maybe more difficult. Than the one we faced beginning in 1941.

Amy Westervelt: Drilled is produced and distributed by Critical Frequency. This series was reported by me, Amy Westervelt. Our producer and composer is David Whited. Richard Wiles is our executive producer. Our story and concept development consultant is Rekha Murthy. Lukasz Lysakowski designed our cover art. Katie Ross, Michaelanne Petrella, and Julia Ritchie provided additional editing. Drilled is supported in part by a generous grant from the Institute for Governance and Sustainable Development. You can find Drilled wherever you get your podcasts. Please remember to rate and review the Drilled podcast. It helps us find listeners. Thanks for listening.

Drilled S1Ep7: Campaigns So Successful They've Landed in Court