An environmental attorney involved in a multi-year campaign to “bring down” energy companies suggested lawsuits targeting those companies over climate change may be more of a media strategy than a legitimate legal pursuit, according to a recently resurfaced video. The comments were made more than a year before several California municipalities and New York City filed lawsuits against fossil fuel producers seeking financial damages from global warming.
Richard Ayres is a lawyer who participated in the infamous 2012 conference in La Jolla, Calif., where activists developed their playbook for using litigation and the press to blame energy companies for global warming. Ayres made the remarks during a panel discussion in February 2016 hosted by the American Constitution Society, which uploaded the video to YouTube under the title “Combatting Climate Change in the Courts.”
During the discussion, Ayres – who co-founded the Natural Resources Defense Council (NRDC) – makes the case for investigating companies under the Racketeer Influenced and Corrupt Organizations (RICO) Act, but not necessarily because the litigation had a high likelihood of succeeding:
AYRES: “A RICO case, which points the finger and says ‘you violated the law,’ is a way of conveying that message to people, getting attention of course from the press, and in some ways we suspect that that outcome, that aspect of it might be more important even than winning the case.” (emphasis added)
What Ayres suggested is revelatory: Climate lawsuits will advance environmental activists’ political agenda, but only if the news media plays along.
At the 2012 La Jolla conference, activists mapped out a strategy they would execute in the coming years, including the use of a “sympathetic state attorney general” to sue companies like ExxonMobil, while also noting that “the media can help dramatically to draw attention to an issue.”
In 2015, New York Attorney General Eric Schneiderman launched an investigation into ExxonMobil’s research on climate change. The following year, Massachusetts Attorney General launched her own investigation during a press conference featuring former Vice President Al Gore. Environmental activists who participated in La Jolla have briefed both AGs on several occasions.
Last week, in the U.S. District Court for the Southern District of New York, Judge Valerie Caproni dismissed a lawsuit filed by ExxonMobil, which sought to end a pair of state-led investigations targeting the company over its position on climate change. In her ruling, Judge Caproni wrote:
“The SAC presents this press conference as the culmination of a campaign by climate change activists to encourage elected officials to exert pressure on the fossil fuel industry…The relevance of these allegations depends on two inferences: first, that the activists have an improper purpose—that is, that they know state investigations of Exxon will be frivolous, but they see such investigations as politically useful; and second, that this Court can infer from the existence of meetings between the AGs and the activists, that the AGs share the activists’ improper purpose. The Complaint and SAC do not plausibly allege facts to permit the Court to draw either inference.” (emphasis added)
But Ayres’ comments appear to contradict what Judge Caproni alleged. The climate litigation strategy, of which the cases from Massachusetts and New York are certainly a part, was premised on getting a message out through the press, which Ayres declared was “more important even than winning the case.”
In other words, the activists see these investigations as “politically useful,” and they are focusing on outcomes other than success in the courtroom – the very definition of a frivolous lawsuit.
Perfect News Hook?
Ayres’ admission is consistent with the strategy that climate activists have executed in recent years, particularly with the #ExxonKnew campaign, which alleges that the company knew about global warming but advocated against the Kyoto Protocol and other economically harmful climate policies.
Prior to publication of one of its #ExxonKnew stories in September 2015, David Sassoon – the publisher of InsideClimate News – emailed an embargoed version to several staffers at Climate Nexus, a PR firm backed by the Rockefeller Brothers Fund, which also funds InsideClimate News.
That same day, a Climate Nexus staffer named Philip Newell emailed several activists about “penning an oped” based on the forthcoming story from InsideClimate News. Newell added that the #ExxonKnew story would provide the “perfect news hook,” while also expressing frustration that in terms of media exposure, the “google-search situation is not good” for the activists.
An op-ed based on the #ExxonKnew stories, however, “would help with that, and hopefully spur more mainstream coverage to drown out the nonsense,” Newell wrote.