During a well-organized press conference earlier this year, New York City Mayor Bill de Blasio boldly declared that he was suing ExxonMobil and other energy companies for causing climate change. The mayor stood next to prominent climate activists like Bill McKibben and Greenpeace’s Naomi Ages, and his declarations generated headlines around the world.
“As climate change continues to worsen,” Mayor de Blasio said, “it’s up to the fossil fuel companies whose greed put us in this position to shoulder the cost of making New York safer and more resilient.”
But amidst the inflated rhetoric and media hype, the mayor omitted an interesting detail: some of the financial damages he wants to recoup are for the city’s ongoing investments in oil and natural gas – investments that the city is making to address climate change.
The lawsuit declares that the city is “expending substantial funds, and will continue to do so, to protect itself against climate change,” and that it “has been forced to take proactive steps to protect itself and its residents” from the “dangers and impacts” of climate change.
Among the investments is a series of programs focused on climate resiliency and sustainability, according to the lawsuit:
“The City’s first formal planning endeavor occurred with the issuance in 2007 of ‘PlaNYC: A Greener, Greater New York,’ a pioneering effort to accommodate a growing population, enhance the quality of life for all New Yorkers, and plan for climate change. PlaNYC included a recommendation that the City convene the NPCC, which the City did. The analysis and commitments contained in PlaNYC are now embodied in ‘OneNYC: The Plan For A Strong And Just City,’ which incorporates equity considerations into the foundation set forth in PlaNYC to consider how to make the City more resilient and sustainable.” (emphasis added)
The OneNYC program includes a variety of public investments, including energy retrofits for buildings to reduce emissions. Those investments are part of the NYC Retrofit Accelerator initiative, through which “the City is providing support for building owners who want to convert from No. 4 heavy heating oil,” according to the latest OneNYC progress report.
The NYC Retrofit Accelerator website lists several alternative fuels that will reduce emissions – including lower-sulfur heating oil and natural gas:
“Buildings still burning No. 4 oil must switch to a cleaner fuel by 2030 or during boiler or burner replacement, whichever is sooner. Buildings have four alternative fuels to choose from: ultra-low sulfur (ULS) No. 2 oil, biodiesel, natural gas, or steam.”
The city even acknowledges that natural gas will reduce emissions. “Converting from No. 4 oil to natural gas can reduce a typical multifamily building’s greenhouse gas emissions by up to 15 percent,” according to the Accelerator website.
In other words, the city is investing in oil and natural gas as a climate mitigation strategy, acknowledging explicitly that they can reduce greenhouse gas emissions – even as it seeks to punish oil and natural gas companies for producing those fuels.
The inconsistency in New York City’s lawsuit is part of a broader trend among municipal climate lawsuits targeting energy producers. Several cities and counties in California, for example, made divergent claims about climate change in their lawsuits and their disclosures to potential investors. The municipalities are suing companies over specific risks and future damages from climate change, including sea level rise, wildfires, and other natural disasters.
But the plaintiffs downplayed those same risks and damages in their bond offerings to investors. In a petition filed in January, ExxonMobil observed that although the cities and counties identified climate risks in their lawsuits, “none of the municipalities disclosed to investors such risks in their respective bond offerings, which collectively netted over $8 billion for these local governments over the last 27 years.”
Indeed, as ExxonMobil further noted, “some of the disclosures affirmatively denied any ability to measure those risks; the others virtually ignored them.”
The differing statements raised questions about whether the cities may have committed securities fraud, or if the lawsuits themselves may have been filed in bad faith.
Earlier this week, Energy In Depth highlighted how New York City, Oakland, and San Francisco all mischaracterized evidence in their legal filings, attributing claims to an industry coalition that were actually sourced from the U.N. Intergovernmental Panel on Climate Change.
The contradictory messages, mischaracterizations, and other inconsistencies in the various lawsuits – many of which are being led by the same law firm, Hagens Berman Sobol Shapiro LLP – suggest the litigation may be more of a political campaign than a legitimate attempt to recover damages.
One of the Hagens Berman lawyers representing the cities, Matt Pawa, was a key player at an infamous strategy session in 2012. Environmental activists met in La Jolla, Calif., to strategize how to use the courts to punish energy companies over the issue of climate change.
The recent climate lawsuits have already been characterized publicly as “flawed” and unlikely to succeed, and the mounting number of discrepancies in the municipalities’ filings will likely raise additional questions about whether these lawsuits were filed in bad faith. The fact that New York City is publicly touting the greenhouse gas benefits of oil and natural gas, which the defendants produce, could at least partially undermine the city’s case.
In any event, such revelations will likely lead to more scrutiny on the plaintiffs – including the activists and trial lawyers who are advising them.