Drilled S2Ep4: Taking Big Oil to Court

Hosted and reported by climate journalist Amy Westervelt, DrilledNews.

Featuring: Ben Platt, a fisherman from Crescent City, California; Lori French, a fisherwoman from Morro Bay, California; Ed Garvey, a former Exxon scientist; Vic Sher, the attorney representing the crabbers in their lawsuit against the fossil fuel industry; Larry Collins, founder of the fisherman’s co-op in San Francisco; and Noah Oppenheim, executive director for Pacific Coast Federation of Fisherman’s Associations.

Amy Westervelt: This is part four of a six part series, if you’ve missed the first few episodes, go back and listen. You’ll be caught up on the story to this point in today’s episode. We’re going to look at how solid of a case the crabbers might have and what exactly Big Oil knew and when. Previously on Drilled.

Ben Platt: In the end, you know, you have to stand on principle that you believe in it. That’s what I was taught. And so if I separate all that from the facts of the lawsuit and what you’re trying to achieve, I believe it’s the right thing to do.

Amy Westervelt: Just as a West Coast crab, fishermen were getting their first real taste of what a future with climate change would be like. Media reports were revealing that some people at least had known this was coming for a while.

News report: Exxon scientists understood the mechanisms and consequences of human caused climate change as early as the late 1970s and early 1980s.

Amy Westervelt: This is the story of two industries one struggling to survive. The other the most powerful in human history. The outcome of their battle may well dictate what path we take in dealing with climate change. I’m Amy WESTERVELT and this is Drilled Season 2, Hot Water.

Reports from InsideClimate News, the Los Angeles Times and the Columbia Journalism School began revealing internal memos from Exxon scientists confirming throughout the 1970s that climate change was happening, that human emissions were contributing to it and that the impacts would be catastrophic if changes weren’t made as we covered in season one. Initially, ex unemployed scientists to study the problem. The thinking was that maybe being part of the research would be a good way to influence any regulations that might emerge. Farmer Exxon, scientist Ed Garvey, explained the company’s approach to me last year.

Ed Garvey: Exxon At the time there was Exxon nuclear. Those Exxon coal. It was Exxon solar. And the time Exxon was trying to be an energy company, not an oil company. And so being taken seriously at the fossil fuel discussions was to their mind. And I think it made sense to me at the time that yeah, this is how you would do it if you want to be seen as not just being your industry, Hacket says. We don’t want you to regulate our industry, period. You need to be saying, yeah, we recognize that this is a problem and this is how we solve it. These are the other things that are going on and so on and so forth. We’re making real contributions here.

Amy Westervelt: But by the early 1980s, the research efforts were being shut down and the company, along with the broader industry, was shifting toward denial. They began spending an increasing amount of money on advertising and PR campaigns that underscored the uncertainty of the science. At the same time, they began investing in protecting their own pipelines and platforms from climate change. And it’s here that the crabbers like Ben Platt really have a problem.

Ben Platt: You know, I think what it boils down to for me is that I’ve done everything I could do as fossil fuel burning boat operator, commercial fisherman to minimize my carbon footprint. I spent a lot of money six years ago now to put in one of the newer teir engines. I got a grant for some of it. And so I took four months off in the middle of my crab season and re powered and spent about sixty five thousand dollars of my own money. And I have the least polluting, most efficient diesel engine you can have in a fishing boat right now. It’s all computer electronically controlled. I didn’t even want to do that because you’re a commercial fisherman on the high seas. Computer electronic control. Scary, because if something goes wrong, we can’t fix it. We’ve modernized our equipment. A lot of our own expense and time because we’re trying to have as little of a carbon footprint as possible. We’re doing whatever we can, but there’s only so much that we can do. We’re not the fossil fuel companies. We’re not the big energy companies. We’re not scientists. We can’t figure out how to make a hydrogen cell or something that’ll power our boats. We’re just using what’s available.

Amy Westervelt: Ben is someone who has accepted that climate change is happening and that humans are a big part of the problem. For a longtime fellow California crab, our Lori French isn’t so sure. She’s told me a few times about dinosaurs and various periods of natural change and particularly what was happening when Henry the Eighth was around.

Lori French: We’re kind of both of the opinion that climate change has happened since the beginning of time. If you look at the dinosaurs again, but then there’s Henry VIII who went through a mini ice age,

Amy Westervelt: seeing with the oil industry knew and when and what they did with that information has shifted her view a bit.

Lori French: Maybe I would say there’s some definite conservation.

Amy Westervelt: but ultimately it kind of doesn’t matter. For Lori, it’s less about climate change and more about fairness. The idea that everyone should be dealing with the same information, that people and markets shouldn’t be manipulated, that most people and companies are at least trying to do the right thing.

Lori French: And I would like to think most people operate more on this playing field, but they don’t. Well, I don’t know why I still keep getting surprised by that. I just do.

Amy Westervelt: Seeing the disconnect between what oil executives are saying to each other and what they were saying to the public shifted her world view a lot.

Lori French: It goes against my whole Pollyanna world outside your doing something that could cause harm, but you’re still putting it with the money, that’s not how the game is played.

Amy Westervelt: Except it is how the game is played, or at least how it has been played for a long time. Even crabbers like Ben, who are very onboard with the need to do something about climate change, were more of the everyone needs to change their light bulbs and drive less school of thought. But the more they learned about how oil companies handled the information scientists were giving them, the more that idea shifted.

Ben Platt: After having studied all the background information, I come to the conclusion that the 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 the public because it would have affected their bottom line.

Amy Westervelt: This week, Drilled partnered with a fun and fascinating quick hit science podcast called Everyday Einstein. It’s hosted by astrophysicist Dr. Sabrina Stephen Walt, who explains complicated scientific concepts in quick eight to 10 minute episodes that make the complex accessible chancers. 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. Stillwell 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 notion of personal responsibility and of demand driving the energy market entirely is a narrative cooked up by the fossil fuel industry. The old. Hey, we’re just supplying a demand defense and it’s been incredibly effective. Much of the conversation on climate change still centers around what individuals can do, not the systemic changes necessary to shift the world away from carbon based economies. Seeing the research and internal communications of oil companies and their trade groups, the strategies laid out to confuse the science and promote already debunked theories that tends to shift the focus back to those in power. For most people. And so last year, the Pacific Coast Federation of Fisheries Associations decided to sue the country’s 30 largest fossil fuel producers. Names like Exxon Mobil, Chevron, Shell.

Vic Sher: I think that there are three separate things that people really kind of sit up and take notice of.

Amy Westervelt: That’s Vic Sher. The attorney representing the crabbers. He’s a tall, white haired guy with a deep movie narrator voice. He’s been litigating against oil companies for decades.

Vic Sher: First is what the industry knew when. And that starts really with the 60s with an acknowledgement of the problem. Internal memos, recommendations to the boards. The comments from Exxon scientists, for example, to the board level saying we have a narrow window of opportunity before hard choices have to be made. And that was in the late 70s that the comment was made. Second thing is, especially post 1988, the overwhelming communications strategy, which is founded on the perpetuation or the promulgation of doubt. So a deliberate strategy to get people to believe that science is uncertain, to justify action and related and memos come out from the American Petroleum Institute and some of the other groups where the specific strategy is laid out of convincing the public that there’s sufficient doubt that we shouldn’t do that. And then the third thing is at 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. So, for example, raising the levels of offshore oil platforms to account for sea level rise, strengthening them to account for increased storm severity and investing in the technology to access a warming and melting Arctic.

Amy Westervelt: When I asked Vic whether anything was surprising to him about what those documents are, cases have revealed. He pointed immediately to what scientists call the great acceleration.

Vic Sher: We have a situation today where half of all of the emissions from coal, oil and gas have occurred since 1988 or 1989 in history, and the annual rate of increase of the use of those compounds has gone up by over 60 percent since 1990. So we’re talking about a recent phenomenon completely tied to a single industry during a period of knowledge. And, as the documents that we have so far show, culpability.

Amy Westervelt: So his knowledge of climate change increased. So, too, did emissions. And while oil companies took the necessary precautions to raise platforms and protect pipelines, the crabbers, like most other people in the world, were led to believe that the science was too uncertain to justify major investments and change. The crabbers’ legal complaint alleges that since oil companies knew their product was harmful and didn’t warn people there at least partly financially liable for the consequences.

Vic Sher: So one of the fundamental obligations that the law imposes on a manufacturer of a product is that if they know that there’s a danger associated with the use of the product, they have to give a warning about it. And that warning has to be proportionate to the severity of the risk and the injury that they know accompanies it. So we’re not talking about fine print hidden away where nobody will see it. If you know that your product is going to destroy the world, you have to be yelling that from the mountain tops frequently and constantly even.

Amy Westervelt: This is not the first time commercial fishermen have taken on oil companies, of course. In the wake of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, which cost the fishing industry there, tens of millions of dollars, asuit against BP resulted in a multi-billion dollar settlement. But this is the first case to take on warming oceans as opposed to spills and aims to hold oil companies responsible for their role in both contributing to climate change and slowing or even halting action on it. The crabbers hold oil companies liable not only for the lost income from 2015, the first year of the outbreak, but every year since they also want oil companies to cover the cost of a simple solution, freshwater tanks on the dock of every crab port. Apparently when crabs soak in freshwater for a day or so, Domoic acid is cleared, but these tanks cost a few million dollars and The crabbers just don’t have it, especially after a few rough seasons in a row.

Noah Oppenheim heads up the Pacific Coast Federation of Fisheries Associations, which has taken on the suit on behalf of its members. It’s a trade association that brings together all of the coast fisheries groups and acts as a sort of a labor union for the West Coast fishermen. Fishermen aren’t allowed to unionize, so their trade associations lobby for policies beneficial to the fisheries. They also negotiate for fair prices with buyers and sometimes organized strikes when those negotiations don’t work.

Noah Oppenheim: It’s crystal clear that prevailing ocean conditions in 2015 and 2016 and since have been driven by de-stabilizing atmospheric forces and ocean circulation dynamics have been changing because of climate change. It’s indisputable that the fossil fuel industry doesn’t dispute the science. What they dispute is whether they are culpable. But liability law makes it clear their negligence and the nuisance, the harm that they’ve caused to our members, the commercial fishermen who’ve been impacted by this, they are liable. And we’re holding them to account, and we’re gonna make them pay.

Amy Westervelt: A lawsuit, and particularly an environmental lawsuit is not any crabbers first choice, but for Ben. It feels like the only tool left.

Ben Platt: The way I look at this lawsuit is that it’s our industry doing our part to try to do something about climate change in this country. If you’ve tried to legislate change, if you’ve tried to elect leaders, that would you know, for a while we had a leader that was more interested in the environment. Executive director of this country. And now we have one that’s the opposite. So if you’re someone that’s concerned about climate change and the effect that it’s having on your world and in our case on one of our main fisheries, then what’s our last option in this country? Our last redresses courts. So it’s the appropriate thing to do. It may be far fetched that we can win this lawsuit, but I do think it’s a worthy cause.

Amy Westervelt: Down the dock in San Francisco, Larry Collins says he’s been seeing the impacts of climate change up close for years and it’s time to do something about it.

Larry Collins: I do. I think it’s pie in the sky. No, I think 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. I’m old. It’s not about me. But I do have grandchildren and it is about them. And I see things, you know, I see the tides coming up higher. I mean, it’s Skorton through the parking lot down to work. And I never saw that before. You get these king tides. Pretty soon the valley’s gonna be underwater. I’m going to see that in my lifetime.

It’s easy for the old people to do nothing. The young people are worried as well they should be. And if the young people can kick the old people in the ass and get him to do something, then maybe we got a shot at fixing it.

Amy Westervelt: But no matter how much crabbers feel like they’re doing the right thing, there’s no guarantee they’ll win. In fact, they’re the underdog, but they’re pretty used to that.

Next time on Drilled will get into why it’s such a big deal of this small industry is suing big oil and what it means for other industries that also depend on natural resources.

Noah Oppenheim: There are so many other renewable industries, industries that can persist forever as long as we have a habitable planet that will be damaged irrevocably if we don’t fix this problem. If we don’t stop right now, the rampant combustion of fossil fuels.

Amy Westervelt: We’ll be back with another episode in this series next week.But if you can’t wait until then or are you just going to support independent climate reporting, Consider becoming a Drilled member. Just go to Drilled supporting cast f.m to sign up. That’s Drilled dot supporting cast that’s s u p.p. o r t i n g c a s t f m f like Frank. m like Mary to sign up. Thanks for your support. We really, really appreciate it.

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 Lind’s Music 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 podcast or wherever you get your podcast. If you like the show, don’t forget to give us a five star rating that 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 Amy Westervelt. Thanks for listening.