Drilled S2Ep3: Two Lawsuits at Once, Both Driven by Climate Change

Hosted and reported by climate journalist Amy Westervelt, DrilledNews.

Featuring: Noah Oppenheim, executive director for Pacific Coast Federation of Fisherman’s Associations; Chuck Bonham, California Fish and Wildlife director; Ben Platt, a fisherman from Crescent City, California; Lori French, a fisherwoman from Morro Bay, California; Dick Og, a boat captain in Bodega Bay, California; Larry Collins, founder of the fisherman’s co-op in San Francisco; Vic Sher, the attorney representing the crabbers in their lawsuit against the fossil fuel industry; and Kristin Mansel, an attorney for the Center for Biological Diversity.

Amy Westervelt: This is part three of a six part series, if you missed the first two episodes, go back and listen. He’ll be caught up on the story up to now. In today’s episode, we’re going to look at how this group of people became the first industry to sue big oil.

Previously on Drilled.

Tanya Beardon: It was just awful. I mean, we couldn’t pay the bill. It was a nightmare. We almost lost everything.

Lori French: It was pretty impressive. Switchfoot musical hits like these. You know what? This is getting serious. You know, we’re thinking, oh, it’s be over by December 1st.

Noah Oppenheim: We have to do something. And that’s something to-date has been closing and waiting multiple years for federal disaster assistance. That may not even be delivered.

Amy Westervelt: That’s Noah Oppenheim, executive director of P.C. FFA. The West Coast Fisherman’s Trade Group. When crabbers finally started their 2015 season after a lengthy delay, they were desperate to make up for lost time. Then word got out that crabs were congregating off the Central Coast near Morro Bay and Monterey. So crabbers flocked to the area like seagulls to a beach picnic.

Ben Platt: I crabed down to Half Moon Bay for a month. And then we picked everything up and trucked dollar gear down to Morel Bay. And there were some crabs down there and we spent the rest of the season there.

Amy Westervelt: Ben Platt wasn’t the only one to make a mad dash for the Central Coast. The Dungeness crab fishery is what they call a Darbie fishery. So if a boat wants to travel and fish in a different district, it can. But that meant that a lot more crab pots, those large round cages that crabbers trap crab in were in these small bays along with crab boats and the crab beuys the crab pots are attached to. So add more Beuys and rope to these crowded bays. It was also later in the year than usual, which meant the crabbers were about to collide with whale migration season. And at the same time, the warm water hadn’t just impacted the algae and the crabs. It had shifted the entire marine food web. That’s exactly what scientists in 1968 had predicted would happen if emissions went unchecked. In a report commissioned by the American Petroleum Institute, which counted every U.S. oil company as a member at the time, Stanford University scientists wrote, quote, Changes in ocean temperatures would change the distribution of fish and cause a retreat in the polar sea ice. That’s happening now. And it’s leading to a cascade of issues that are depleting the world’s fish stocks. As rising temperatures kill off plankton, the fish that survive on them are decreasing in numbers, as are the fish that feed on those fish and so on and so on. In this episode, we’re going to look at how all of that has landed crabbers in the middle of not one, but two lawsuits, a whale entanglement suit filed against them and a liability suit they’ve filed against the 30 largest fossil fuel companies. Both suits are ultimately about climate change and the way it’s changing marine ecosystems. And together, they provide a really good example of why everyone should be paying attention to what’s happening in the oceans. This is the story of two industries. One, fighting to survive. The other the most powerful in human history. The outcome of their battle could very well determine whether and how we act on climate change. I’m Amy WESTERVELT and this is Drilled Season 2, Hot Water.

Chuck Bonham: We had these unheard of changes in ocean conditions. We had so-called warm water blobs and the ocean temperatures really increased. And that caused the reaction. So the really small fish called krill moved and their abundance changed. And that’s what the whales eat. So the whales chased that food and they came closer to the shore, which brought them into contact with our traditional fishing grounds. And if you remember, at that time, a year crab fishing started late because we had this high plume of algae and domoic acid. So it was like a confluence of all the worse things. Real climate change impacts whales moving closer to shore, crab being placed later because of domoic acid. And we just saw this huge uptick entanglements.

Amy Westervelt: That’s Chuck Bonham, California Fish and Wildlife director. Krill are the preferred food of migrating whales along the coast. And on top of there, being less of them, those that remained had moved closer to shore. That led to a major spike in whales getting entangled in crab gear.

That spike in entanglements drew the attention of environmental groups.

Dick Og: Well it was warm water and no krill and high concentrations of crab gear. it was the perfect storm.

Amy Westervelt: Dick Og captains a boat out of Bodega Bay and he’s been very involved in the Dungeness Crab Gear Working Group that formed shortly after that fateful year. Dick is a really interesting guy. He’s been a vegetarian for 40 years. He’s been fishing for about 20 years. And he doesn’t eat during the day for a reason he never gave me. And he’s seen as sort of a leader in the crabbing community, something of a spiritual guide. So and Dick told me his theory on what was going on with whales that year. I knew to pay attention.

Dick Og: There seemed to be a lot of crabs down in the Monterey Bay area. So the majority of fishermen went south and concentrated gear in an area there off from Monterey. So not only was there the migration of the humpbacks occurring, but there was also a situation where their food source was right in the middle of world crab. Here was. And in addition to that product, the whales were after the anchovies were very, very high ammonia gases. And so the whale eating tainted food. So whether that affected their reactions, you know, they responded. You don’t know.

Amy Westervelt: That theory hasn’t been tested yet. But a number of other folks told me similar things. And it tracks with what marine biologists have observed in marine mammals since warm waters started triggering these toxic algal blooms. On top of the fact that warmer waters are upsetting the food chain, causing seals, sea lions and whales to starve to death. The domoic acid triggered by the algal blooms is messing with these animals heads.

News cast: This sea lion is having seizures and poisoned from domoic acid. A deadly natural talks and being found in very high levels from California to Washington state.

Amy Westervelt: So it’s really not so farfetched to think that domoic acid rich anchovies made Mid-Wales more likely to get tangled up in ropes that year on top of everything else that was going on.

This week, Drilled partnered with a fun and fascinating quick hit science podcast called Everyday Einstein. It’s hosted by astrophysicist Dr. Sabrina Dear Walt, who explains complicated scientific concepts and quick eight to 10 minute episodes that make the complex accessible. She answers questions like, How can you tell if your tap water is safe to drink? And clears up common areas of confusion like whether wormholes really exist. And just like the Drilled team, Dr Stairwell is committed to debunking misinformation about the scientific concepts shaping our world. She’s done episodes on everything from why vaccines bolster herd immunity to how we know climate change is linked to more intense extreme weather events. It’s a great show and you’re bound to learn something new, including tips on how to explain this stuff to other people. Find everyday. Einstein on Apple podcasts, Spotify or wherever you get your podcasts. Okay. Back to the show.

Amy Westervelt: The working group wasn’t just sitting around and talking about stoned whales, though, it also proposed some restrictions around fishing when whales were present. But ultimately, those proposals weren’t enough. The Center for Biological Diversity, an Arizona based nonprofit focused on endangered species, sued the California Department of Fish and Wildlife, threatening a shutdown of the fishery entirely.

Kristin Monsell: We were a part of that working group for a couple years and were very frustrated at the lack of meaningful changes on the water.

Amy Westervelt: That’s Kristin Monsell. She’s the lead attorney on this case for the Center for Biological Diversity.

Kristin Monsell: The working group largely was talking about voluntary measures, which we now simply don’t work. And it was just a lot of talk and there was no actions that matched the words.

Amy Westervelt: It’s the sort of thing that will get fishermen talking about how much they hate environmental groups. In a lot of ways, crabbers are skeptical of Big Green as they are of big oil. Lori French has a lot to say on this subject.

Lori French: They always have to have some crisis that they’re collecting for the whales. The band of snails or speak to Pigeon Pidgin. There’s always some crisis if they’re pushing for in the name of save the environment. And it seems that they never really saw the crisis’s, but they’re always willing to put people out of business.

Amy Westervelt: And Ben is also distrustful of the intentions of environmental groups.

Ben Platt: My opinion is that some of these NGOs are just self-perpetuating organizations.

Amy Westervelt: And Ben has seen representatives from environmental groups storm out of negotiations and become increasingly involved in fisheries management in a way that just doesn’t sit well with him.

Ben Platt: In my opinion, what they’re doing in essence is so arrogant because they’re coming in and saying we don’t trust the process. So they’re telling people that have spent their life’s work is in fisheries biology and in fisheries management and in fishing and in processing. We know better than you. We have to save the process because you guys are screwing it all up.

Amy Westervelt: Every crabber I spoke with said similar things about environmental groups. They don’t respect all sides. They’re using whales for fundraising. They’re all bloated and is looking for causes to keep themselves going, which is amusing because half the time, probably more than half are on the same side.

Ben Platt: When we’re talking about salmon water, we’re usually on the same page. But as soon as we go out on the ocean, I mean, it’s kind of like we’re all fairweather friends. As soon as we go out in the ocean and start trying to make a living, then sometimes we’re at odds with this recreational fleet. Sometimes. Oftentimes we’re at odds with some of the environmental groups. I mean, we all love whales. We all love sea otters. We all love you know, I’ve been Alaska. The orcas are major parts to the long liners. They steal a lot of fish. But, you know, we deal with it sometimes. It’s really irritating. But we understand that we share the ocean with these marine mammals.

Amy Westervelt: It’s also funny because a lot of people would probably see suing the oil companies over climate change as a pretty radical environmentalist move. But both Lori and Ben reject that identity. Crabbers are very into preserving resources, and the crab fishery is one of the most sustainable in the country. They toss females and small males back, which ensures that the crab are self-sustaining.

And they’ve historically agreed on various self-imposed regulations that ensure the fishery can continue. So it is an unhappy coincidence that this would be the first fishery shut down by warming oceans, not by overfishing or stock depletion. And it wasn’t a one off. Noah Oppenheim, the head of the Fishermen’s Trade Association, says domoic acid closures are the new normal.

Noah Oppenheim: We are going to be looking at domoic acid as neurotoxin that accumulates in the tissues. Crabs and other shellfish species impacts driven by climate change every single season in perpetuity. It’s disruptive, it’s damaging. It destroys communities. And we do not have appropriate mechanisms to support fishermen when these events occur in the aftermath of that 2015 season.

Amy Westervelt: The California Fish and Wildlife Department successfully secured a disaster relief package from the federal government totaling $200 million for California fishermen. The package covers issues across several fisheries, and crab fishermen are expected to get $15 million of that. But the funds have not been allocated yet and money has never materialized. And a lot of folks have given up on it ever appearing.

Lori French: I know there’s a lot of guys that were worried about this with disaster funding that we’re still supposed to get. You know, this is and there’s people who could use it.

Amy Westervelt: Meanwhile, like Noah said, the closures have continued. And just as crabbers were experiencing that terrible first year, reporters uncovered something new about climate change.

News cast: First, a new tack in the battle over climate change going after energy companies for alleged financial fraud. Exxon history has been the subject of recent reporting by Inside Climate News. The Los Angeles Times and others. The reporting has allege the company misled the public about what its own scientists found about the risks of climate change and greenhouse gases.

Amy Westervelt: A treasure trove of documents revealed that oil companies had known the impact their product would have for decades and had set about discrediting the science and spreading confusion about it. Brulle fossil fuel companies played in stopping action on climate change was surprising to crabbers. Here’s Noah Oppenheim again.

Noah Oppenheim: The deep regulatory capture of federal agencies and representative bodies has been the most surprising aspect of this whole discovery phase of the inner workings of the fossil fuel companies. The extent to which they have bought and paid for policy, basically co-opting democratic institutions in order to get their agenda further. I mean, that’s been American politics for generations. But it feels different in this instance. It feels like it’s been effective beyond anyone’s wildest dreams.

Amy Westervelt: When crabbers and lawyers first talked about whether or not they might have a case against oil companies, a lot of the fishermen had a similar reaction as Ben Platt at first sniff,

Ben Platt: It sounded like, you know, pretty far fetched. You know, my initial reaction was just like a lot of other fishermen. It’s like, well, I have a diesel engine in my boat. So why why would I want to sue a fossil fuel company? And I was still fairly skeptical about whether or not I wanted to be involved in it. I was aware that there would be backlash from other fishermen over something like this. We’re all going to have whatever opinion we have about whatever particular fishery issue we’re talking about right now or having a meeting about or strike or whatever. But we’re very divided just like the rest of the country on national and international politics. So, you know, I have to live with all these guys. These guys are my buddies. They’re my friends. They’re people I grew up with. You know, we share communities together. And these coastal communities are tight knit to not just the fishing communities. And if you’ve been fishing long enough, it’s like one big family. A lot of us know each other, knew each other’s parents and brothers and aunts and uncles and sisters. And I have that kind of connection with people from Morro Bay to southeast Alaska. So I’m reluctant to be part of something that might anger a lot of other my fellow fishermen. But, you know, in the end, you know, you have to stand on principle that you believe in. I mean, I would that’s what I was taught. And so if I separate all that from the facts of the lawsuit and what they’re trying to achieve, I believe it’s the right thing to do.

Amy Westervelt: Enough of the rest of the fleet agreed that the trade federation decided to take on the case just as the whale entanglement case began to move forward. Crabbers decided to take matters into their own hands and sued what they’d come to believe was the real culprit.

Ben Platt: Fossil fuel companies knew about the warming of the climate. They knew the effect it would have on the ocean. And they had all this information a long time ago and they didn’t share it with public because it would have affected their bottom line.

Amy Westervelt: Next time on Drilled, a recap of the oil companies did know about climate change and when and what sort of case the crabbers have.

Larry Collins: We need to start doing something. We have a long road ahead of us and if we don’t start, we’re never going to get there.

Vic Sher: The same time that there’s this public promulgation of doubt. You have internally the companies making enormous investments in their own infrastructure and planning for the future.

Noah Oppenheim: Everybody uses fossil fuel petroleum products in the United States. You can’t buy food without it. You can’t travel in this country without it. You can’t wear clothing without it. So while the products that we as consumers use every day may be produced by this industry, that does not negate in any way whatsoever the responsibility that they have in disclosing the harm that they knew was being facilitated by the production of these products.

Amy Westervelt: Drilled is produced and distributed by Critical Frequency. The show was created and reported by me, Amy WESTERVELT Rekha Murthy is our editorial advisor and additional editing for this series was done by Julia Richy. The series was mixed by Bill Lamp’s Our Season 2. Music was composed by Elliot Peltzman. Season 2 Cover Art was drawn by Angela Shay. Drilled is supported in part by a generous grant from the Institute for Governance and Sustainable Development. You can listen and subscribe to Drilled on Apple podcasts or wherever you get your podcasts. If you like the show, don’t forget to give us a five star rating. It helps us buy more listeners and combat pesky climate deniers. Visit our website Drilled podcast dot com for behind the scenes photos and additional information about this series. You can also drop us a tip or story idea there, and sign up for our newsletter. Or you can find me on Twitter. I’m at Amy WESTERVELT. Thanks for listening.

Drilled S2Ep3: Two Lawsuits at Once, Both Driven by Climate Change