The past year has not been a great one for supporters of the climate litigation campaign.

There were several devastating blows dealt to climate lawsuits, both on the process and the merits, and as Law360 summed up:

“The U.S. Supreme Court expanded the ability for fossil fuel companies to fight climate nuisance lawsuits lodged by state and local governments, and the Second Circuit rejected one such suit outright.”

In response, the plaintiffs’ attorneys have had to call in the reinforcements and place academics on their payroll to help explain why, against all the evidence, these lawsuits aren’t failing. Meanwhile, major activist organizations are holding personal meetings with top government officials in order to recruit them to their side.

We’ve taken the liberty of compiling the climate litigation campaign’s year in review:

Major Defeats

SCOTUS Ruling

One of the most devastating defeats of the nearly decade-long climate litigation campaign came in May when the U.S. Supreme Court overwhelmingly sided with the energy companies on a key procedural question that will help decide if these lawsuits are heard in federal or state court.

In a 7-1 decision, the court ruled that the U.S. Fourth Circuit Court of Appeals should have considered all grounds for removal before affirming a lower court’s decision that sent the City of Baltimore’s case back to state court. The decision had significant ramifications for the climate litigation campaign, and cases from California, Colorado and Rhode Island also landed back in the circuit courts for further consideration.

The magnitude of the ruling wasn’t lost on the media. Bloomberg Law observed that the industry now has the “the upper hand” in these cases, while Reuters reported the lopsided decision meant a difficult path now lies ahead for the plaintiffs.

New York City Defeat

On the merits of climate litigation, New York continues to be the poster child for these flailing lawsuits. The New York attorney general’s case against ExxonMobil was decisively defeated in 2019, and in April of this year, the 2nd Circuit affirmed a lower court’s dismissal of New York City’s public nuisance lawsuit, ending the case for good. The court ruled that lawsuits aren’t the proper tool for addressing climate change:

“To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” (emphasis added)

The defeat is a sharp rebuke to outgoing Mayor Bill de Blasio who blatantly admitted the goal of the suit was to put the oil and natural gas industry out of business, saying in 2018, “Let’s help bring the death knell to this industry.”

Despite the loss, less than a month later, de Blasio filed yet another climate lawsuit despite politicians in New York having an 0-3 record, this time focused on consumer deception claims.

King County Withdraws

In the spring of 2018, King County, Washington (home of Seattle) was among the first municipalities to file a climate lawsuit. Just over three years later, it threw in the towel on the case.

In September, the county gave “notice of its voluntary dismissal of this action,” making it the first plaintiff to give up on a lawsuit. The move also represents a blow to plaintiffs’ attorney Matt Pawa, who was a key player at the infamous La Jolla conference in 2012 where the playbook for the entire climate litigation campaign was mapped out and who was at the helm for San Francisco and Oakland’s loss as well as the New York City defeat.

Attribution Proponents Criticize Their Own Science

This defeat can be clearly labeled as an “own goal.”

The use of climate lawsuits has spawned the development of so-called “attribution research” – or the flawed attempt to assign a certain amount of carbon emissions to specific companies.

In June, a group of academics – who are outspoken supporters of the climate litigation campaign – released a report that admits that the climate attribution science currently being deployed by plaintiffs’ attorneys has serious flaws:

“We find that the evidence submitted and referenced in these cases lags considerably behind the state-of-the-art in climate science, impeding causation claims.”

Hey, that’s their words – and it’s very clear why they’re speaking out, and it has nothing to do with the pursuit of greater knowledge through scientific understanding. Instead, it’s all about the litigation. As Friederike Otto, one of the authors of the report, told E&E News just a couple months earlier:

“Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.”

Admitting your made-up science is really about lawsuits + saying the science stinks = a big defeat for climate litigation.

Academics Get More Involved

Oreskes on Retainer with Sher Edling

In May, Harvard researcher Naomi Oreskes looked to make a big media splash with her latest research paper on the industry’s climate communications. Instead, a bombshell dropped.

It turns out Oreskes is on retainer with the plaintiffs’ law firm Sher Edling, which represents more than dozen states and municipalities in climate lawsuits. CNN reported at the time:

“The company said Naomi Oreskes, one of the main authors of the study, is on retainer with a law firm that is leading lawsuits against Exxon and others in the industry. Exxon called this a ‘blatant conflict of interest.’ Oreskes was not immediately available for comment.” (emphasis added)

We already knew Oreskes “conceived” of the 2012 La Jolla conference, as the New York Times put it, and receives money from the Rockefellers for her research. So, while Oreskes has always been an active participant in the climate litigation campaign, her partnership with the plaintiffs’ attorneys removes whatever independent credibility she had left.

Oreskes, along with co-author and fellow Harvard researcher Geoffrey Supran, also acknowledged in that paper its purpose supporting litigation:

“Our work may, therefore, be relevant to ongoing lawsuits against ExxonMobil alleging ‘deceptive marketing’ and ‘greenwashing,’ as well as to calls for policymakers to ban fossil fuel industry advertisements or require that they come with tobacco-style warning labels.”

Meanwhile, Supran claimed he wasn’t talking to lawyers, while Oreskes was on retainer:

“Obviously, we did this completely independently. I’ve never spoken to any of the lawyers involved. But certainly, with hindsight, our insights may be relevant, especially to these more nascent cases alleging deceptive marketing.”

Franta’s Consulting Work

Ben Franta, a PhD candidate at Stanford University and self-proclaimed anti-oil and natural gas activist, also acknowledged he’s working directly with litigation supporters. In a deeply flawed paper attacking TotalEnergies, Franta stated:

“[Benjamin Franta] has served as a consulting expert for climate change litigation, and the findings reported in this article may be relevant to such litigation.”

Franta is also pictured on the website of Sher Edling on their “Meet Our Team” page, the same firm that Oreskes on retainer.

This consulting work raises obvious questions about the objectivity of Franta’s so-called academic work.

Minnesota Memo

Last year, we learned that Minnesota activist group Fresh Energy teamed up with the Center for Climate Integrity to personally recruit Attorney General Keith Ellison to file a climate lawsuit. Then in May, it was revealed that before those groups approached Ellison, they enlisted University of Minnesota law professor Alexandra Klass to write a legal memo justifying such a lawsuit in the spring of 2019.

According to a report by Government Accountability & Oversight, P.C., public records show that Noble and CCI asked Klass to write the memo to “present to Ellison” with help from the Rockefellers.

The entire purpose of the memo was to encourage Ellison to file a climate lawsuit – which he eventually did. But Klass never disclosed her role in orchestrating the lawsuit, despite her work as an academic and supposed neutral third-party expert who was hosting forums on climate litigation, speaking with the media, and appearing on podcasts.

Activist Coordination

Maryland Recruitment Campaign

When Annapolis and then Anne Arundel County each filed climate lawsuits in quick succession earlier this year, it quickly became clear that both municipalities were recruited to introduce these cases by activist groups Chesapeake Climate Action Network and the Center for Climate Integrity.

In a press conference announcing the lawsuit, Annapolis Deputy Manager for Resilience and Sustainability Jackie Guild said:

“I also received information from my contacts, the Chesapeake Climate Action Network, who is busy with pushing towards energy efficiency and clean fuels. They asked me if I knew about these lawsuits and how they were progressing and I had some knowledge, and they thankfully provided me with some additional knowledge.

I asked them about different lawsuits they were aware of and I started exploring some of the information they provided, and the law firm Sher Edling appeared again and again with the lawsuits that have been brought by the twenty-four other states and cities and counties in the U.S. that are suing the fossil fuel industry, and they by far have the most experience.” (emphasis added)

In Anne Arundel, documents uncovered through public records requests reveal further coordination, with one CCAN employing writing to the county:

“CCAN, in collaboration with the Center for Climate Integrity is very interested in facilitating lawsuits for cities in Maryland against fossil fuel companies for the ongoing damages brought on by climate change.”

Active recruitment of potential plaintiffs has become a signature for CCI, which successfully pitched Minnesota Attorney General Keith Ellison in 2019, while the Institute for Governance and Sustainable Development, CCI’s sponsor, is fronting the legal costs for Hoboken, N.J.’s lawsuit.

Rockefellers Pitch U.S. Senator

After years of failure in the courtroom, the Rockefellers took a new angle in 2021 when in August Lee Wasserman of the Rockefeller Family Fund worked with U.S. Senator Chris Van Hollen (D-Maryland) to introduce a bill targeting the energy industry. The New York Times reported:

“‘These oil companies and their executives are by far the most responsible parties for the climate crisis,’ said Lee Wasserman, director of the Rockefeller Family Fund, a philanthropic group that helped develop the proposed legislation.” (emphasis added)

This deeply unserious proposal – that’s clearly part of the coordinated campaign against the industry – would hurt the U.S. economy by singling out American companies while ignoring state-owned entities like Russia’s Gazprom and National Iranian Oil.

As demonstrated in California, undermining domestic energy production does nothing to drive down demand. Instead, it just makes the United States more reliant on imports from companies like Gazprom, which creates jobs in those countries and not here in America.

Looking Ahead

The SCOTUS ruling is expected to continue to have ripple effects through 2022, as state courts are directed to consider all grounds for removal before moving a case forward at the state or federal level.

Meanwhile, the energy industry continues to invest billions of dollars a year into improving efficiencies of their systems and developing new technologies to address climate change.

So, after several years of waging war in the courtroom without racking up even a single victory, and with a Congress and White House that have expressed a sincere desire to do the things that could actually tackle climate change, why are the proponents of litigation continuing to waste taxpayer resources in this vain effort so a few trial lawyers can hopefully become very rich while accomplishing precisely nothing on climate change?