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; Noah Oppenheim, executive director for Pacific Coast Federation of Fisherman’s Associations; Ted Boutros, Chevron’s attorney; and Jon Entin, law professor at Case Western University

Amy Westervelt: This is part five of a six part series, if you’ve missed the first few episodes, go back and listen. He’ll be caught up on the story up to this point. In today’s episode, we’re going to look at why it matters that this is the first industry to sue big oil and what this case and this sort of David versus Goliath struggle might mean for other industries. Previously on Drilled.

Vic Sher: If you know that your product is going to destroy the world, you have to be yelling that from the mountaintops frequently and constantly.

Amy Westervelt: The West Coast Dungeness crab fishery off the California and Oregon coasts is one of the most sustainable fisheries in the world. Crabbers, throwback females and juvenile males. So the stock is self replenishing. Repeated closures since 2015 are unusual in U.S. fisheries, which are typically shut down for stock depletion. And while that can be exacerbated by climate change and warming oceans as well. The case here is a little more direct. Warming oceans grow more algae. More algae means more domoic acid. And that’s what’s resulted in the repeated shutdowns for this fishery.

Noah Oppenheim: The paradoxical nature of this is really challenging to accept that we would be looking at closures in an otherwise healthy fishery, whether it’s driven by domoic acid or other factors to close the fishery that’s doing well is something new in American fisheries management. And we need to treat it differently from the kinds of closures that we’ve had to institute when climate forces are overfishing have resulted in stock depletion. We have to treat it differently. It’s a new phenomenon. It’s completely different.

Amy Westervelt: That’s Noah Oppenheim, head of the Fisheries Trade Association. Again, he repeats something I heard a lot talking croppers. We’ve done everything we can. Something needs to give, especially now that the season is being squeezed at both ends, making it harder than ever to make a living. 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.

With domoic acid delays at the beginning of the season and whaled closures at the end, fishermen are worried that their fishery could disappear altogether. They’ve already seen a slight decrease in demand thanks to all the domoic acid closures. It’s not great as a food supplier to have a lot of news about your product being unsafe to eat. Crabber Ben Platt points out another issue with these annual shifts to the season.

Ben Platt: We crowd that year until the very end of the season, which in-district 10 is June 30th and then it takes a couple of weeks to get your gear. We had a or go back home. So by the time we got salmon drawn, it was already middle of August. So essentially salmon season was just about over by the time we started. Normally we would be if we’re going to go salmon trawling. You want to be finished crabbing like in mid-March, maybe at the latest, because you you need to haul your boat out of the water and you need to, you know, put all your gear away. And if you’re out of town like we are now, you have to bring everything back. And most people do their major projects in between season. But in order to do that, you have to be done with your crab season before we even started on these domoic acid years. Last year, we didn’t start until February 7th or something like that. This year, we started January. Twenty second up here. You can’t get a full crab season, full salmon season, or if you’re a shrimper, you can’t get a full crab season and full shrimp season. And so, yeah, the demark acid thing and throws everything off. We don’t like having more than a month or so at the most of downtime. And it’s not just for us, it’s also for our crews. We can’t keep good crews, which are essential to doing well with these fisheries. If we can’t keep them employed essentially year round,

Amy Westervelt: None of the crabbers that I talked to does less than two different types of fishing. Many were salmon trawlers before the state’s dams made that fishery a little harder.

Ben Platt: It used to be like 80 percent salmon income, 20 percent crab. And now and then it got flipped on its head and now it’s a hundred percent crab and albacore on my new boat. So, I mean, what that’s done is, is put all this pressure into the crab fishery.

Amy Westervelt: And then because the crab season shifted, even if fishermen made up income later in the season on crab, they lost it on whatever their other season is. Typically black cod, rock, cod, salmon, tuna or shrimp. You might expect crabbers to be pessimistic given the endless rollercoaster of their industry. And they are. But they’re also weirdly optimistic. They take risks and bet on the future of their industry constantly. Ben is building a bigger boat right now. He’s hoping to get another few good years and so he can retire.

Ben Platt: We get overextended, too. I’ve done it myself over and over again in my career. You know, I’m doing it right now with the new boat, you know, taking a big financial risk. So with all this stuff going on with whale lawsuits and demark gas hitting everything else, and there’s casinos up here, and when one year when I was up here, salmon join. So he’s like, you go, did you go? No. I said, no, I don’t gamble. I’m not a gambler. And he said, Yeah, you are. What do you mean? He goes, well, you’re a commercial fisherman. You’re constantly gambling. And that’s true. I mean, we gamble with our money all the time and take risks, you know, to try to grow our business.

Amy Westervelt: Down in Morro Bay, Lori French is also starting to think about retirement and hoping that fishing remains an option for her son, Lauren.

Lori French: We’re calling the loss of one hundred three gathers and we need to do anything we can to protect them.

Amy Westervelt: Part of this sort of realistic optimism they have has to do with how close they are to the resources they depend on and how well they understand them. These are communities that are constantly thinking about resource management. It’s an almost daily concern, which also makes them an interesting counterweight to the oil industry. On one side, you’ve got a working class community that carefully stewards the resource. It depends on the other. You’ve got a well-funded industry that’s also resource dependent but focused on extracting as many resources as possible as quickly as possible. As the first industry to take on big oil, crabbers are navigating uncharted waters. But Noah says he hopes it encourages other resource dependent industries, everything from agriculture to the outdoor industry to take a stand to.

Noah Oppenheim: They’re both extractive industries. The key difference is that ours is a renewable industry and there’s not. There’s a finite life to their industry. We can keep eating Dungeness crabs forever and we hope to the business. To business side of things is a new angle. 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 and take drastic steps now to curb climate change. We know it’s already impacting society in deep and extreme. Fairly damaging and expensive ways industries need to step up. Ours has. Others will have no doubt.

Amy Westervelt: This is precisely why the oil industry may well fight this suit even harder than it has the various other suits brought against it by states, cities and counties. I reached out to Exxon Mobil, Chevron and Shell for comment on this suit, and only Chevron got back to me. Of the crabber suit in general. Spokesman Sean Commi wrote, quote, It’s always regrettable to be in a legal dispute with a customer, especially considering how much diesel the fishing fleets purchase. Now, remember, this was the issue many fishermen themselves had with the suit initially as we covered earlier.

Ben Platt: 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?

Amy Westervelt: But eventually they realized that while, yes, they are customers who purchase diesel, they are not companies who decide what sort of fuel is available for purchase.

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. A lot of us have done this and we’ve modernized our equipment and her own a lot of our own expense and time because we’re trying to have as little of a carbon footprint as possible. You know, 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 bones. You know, we’re just using what’s available.

Amy Westervelt: Chevron’s Commi went on to say that the crabber suit uses the same arguments as the other climate liability suits and that the claims, quote, defy state and federal law. Last year, Ted Boutros, Chevron’s attorney, who has also been the preferred spokesperson of all the oil company defendants in previous suits, said this to me about climate liability cases in general.

Ted Boutros: We recognize that global warming is a serious issue and poses serious problems that need to be confronted on a global basis. But this kind of lawsuit is counterproductive and it’s just legally flawed.

Amy Westervelt: Exxon Mobil has been aggressively counter-suing in its responses to other liability suits. The other oil companies have been less inclined to counter-sue. And Chevron’s Komi is right. The suit doesn’t allege anything different from those suits. It’s the plaintiffs that are the key difference. They cannot so easily be brushed off as out of touch environmentalists or money grubbing trial lawyers or government bureaucrats seeking to annoy industry with too many regulations. In fact, they’re an industry that complains themselves about regulation. Lori French talks about it frequently.

Lori French: Regulations. And there’s always some crisis that they’re pushing for in the name of Save the environment while just giving orders there, though, some 20 of them in the state and they close the fishery on that. Just look how much damage in less than 20 guys make.

Amy Westervelt: It’s hard for the oil industry to use a standard industry versus the environment or industry versus the government sort of defense against another industry, and especially one that holds a lot of the same views about both environmental groups and regulations being annoying and bad for business, and one filled with working class Americans who have been materially harmed by inaction on climate. Even conservative judges who have mostly said things about how climate change is just sort of a necessary component of progress might struggle to issue a judgment that says, in essence, this industry is right to make its shareholders more money trumps that industry’s right to exist. Lord help the judge, who says, like Lori’s sister died back in 2015, that crabbers like Jeff should just fold up the fishing business and go get a job at the hardware store.

Lori French: It’s like, how long have you known my husband? No, he’s never worked for anybody except for having work for Kentucky Fried Chicken, when I was in high school. Oh, now he’s fished his entire life? That’s the way he is. He works hard. But if he had to punch a clock it’d kill.

Amy Westervelt: Still winning the suit, even keeping it alive past the oil companies motion to dismiss will be far from easy. Several climate liability cases are in the courts at the moment, along with fraud probes of Exxon Mobile by the states of Massachusetts and New York. And oil companies have made it clear that they won’t go down without a fight. They’ve countersued nearly everyone who has sued them. And Exxon in particular is pursuing a First Amendment defense, arguing that the First Amendment gives it the right to say whatever it wants about climate change, no matter the consequences, or whether it contradicts their own internal research.

We covered this First Amendment defense in one of the bonus episodes in Season 1 of Drilled. It’s the latest in a long string of attempts to reshape the First Amendment into a blanket protection for corporations. Here’s constitutional law expert Jon Entin to explain.

Jon Entin: The basic question is do corporations have rights? And the issue is yes. The Supreme Court has said for a long time that corporations are legal persons. But in the commercial speech area generally that false or misleading speech is not protected.

Amy Westervelt: That last bit is where the rubber really meets the road in these climate liability cases. If plaintiffs can prove that oil companies were making false or misleading statements about climate change, then their First Amendment defense is likely to fall apart. But of course, that also depends on the judge and their thoughts on corporate personhood. Meanwhile, the crabbers still have to deal with the impacts of the suit brought against them by environmental group, the Center for Biological Diversity. They worked with the Department of Fish and Wildlife and the Center for Biological Diversity to settle that suit and keep the fishery from a total shutdown. But things are still pretty dire. Ben Platt described it as the biggest threat to the fishery since he was a kid. The season will shut early every year until the state gets a federal permit that allows fishing to continue alongside endangered species. There’s a push toward roadless gear as a solution, but fishermen are concerned about the cost, particularly given the hit the industry has taken in recent years. And there’s still plenty of disagreement within the community over how to handle all of this. It’s an industry and a community that’s on the ropes.

And hey, we’ve lost industries before. Sometimes that’s just what happens. Things change. The economy needs different things. But climate change has come for fishermen in a way that should be a warning for every industry, just as it continues to impact cities, to flood entire Midwest towns off the map, or in Gulf California towns in a single fire. It’s coming for a community or an industry you care about, too. It’s only a matter of time. And who we hold responsible for that, how we adapt, that could have a real impact on how we address climate change in general and whether we’re up to the challenges ahead.

Next time on Drilled, we’ll look at what’s next for crabbers and what this fall’s season might hold.

Chuck Bonham: There is a bigger discussion that needs to continue about what does it look like to help our rural coastal communities become more climate adapted. What does it look like to have the right war infrastructure for chillers and boats and how to prepare them for what might be the future?

Amy Westervelt: We’ll be back with another episode in this series next week. But if you can’t wait until then or you just want to support independent climate reporting, consider becoming a Drilled member. Just go to Drilled DOT supporting cast DOT F.M. to sign up. That’s Drilled dot supporting cast su PPO r t i n g c h s t dot 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. An additional editing for this series was done by Julia Richy. The series was mixed by Bill Leontes 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 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 Web site 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.