Last week, Ken Eikenberry, the former Attorney General of Washington State, wrote that “Exxon Mobil Corp. currently is the target of environmental activists, deep pocketed donors, trial lawyers and ambitious politicians who see the oil company as a major trophy.” One of the key tactics of that strategy are copy-cat climate lawsuits that cities, counties, and one even one state have brought against major oil and gas companies, which claim that energy producers are liable for climate change related damages.
One of lawsuits was filed by King County in Eikenberry’s home state of Washington. Eikenberry’s remarks come shortly after Exxon Mobil, BP, Chevron, ConocoPhillips and Shell filed motions to dismiss the King County lawsuit. The county is being represented by Hagens Berman, the same plaintiffs’ firm that has brought essentially the same discredited suit on behalf of San Francisco, Oakland, and New York City.
The companies note the total failure of these lawsuits in federal court thus far:
“The Complaint raises federal statutory, regulatory, and constitutional issues; aims to upset bedrock federal-state divisions of responsibility; and has profound implications for the global economy, international relations, and America’s national security. For these reasons and more, cases asserting nearly identical claims have universally been rejected by U.S. courts. In fact, in the last five weeks, both the Northern District of California and the Southern District of New York have dismissed the same claims, against the same five Defendants, brought by the same private lawyers representing Plaintiff here.” (emphasis added)
The companies also highlight the absurdity of King County’s complaint, which asserts that a global issue should bizarrely be treated as a local problem within the jurisdiction of a state court:
“This case is about global production and global emissions, not a local nuisance. Plaintiff asks this Court to disregard the recognized boundaries of tort law and hold these select Defendants liable for the actions of literally billions of third parties not just in King County, but around the world. These claims cannot be adjudicated without deciding whether the alleged harms are outweighed by the social utility of fossil fuels—not just in King County, but around the world.”
The correct venue for dealing with climate change is through policy set by the Executive branch or laws passed in Congress, according to the defendants:
“Plaintiff asks this Court to decide whether the extraction and production of fossil fuel worldwide is ‘unreasonable’ given its alleged connection to global warming and the potential that such warming will lead to future harms. But the judgment they seek is not within ‘the proper—and properly limited—role of the courts in a democratic society.’”
Perhaps that is why climate crusader King County Executive Dow Constantine has not said a word about the lawsuit since issuing a canned statement in a press release:
“The science is undisputable: climate change is impacting our region today, and it will only cause greater havoc and hardships in the future… The companies that profited the most from fossil fuels should help bear the costs of managing these disasters. Big Oil spent many decades disregarding and dismissing what is our most pressing generational challenge. We must hold these companies accountable as we marshal our resources to protect and preserve what makes this region great.”
Notably, Hagens Berman offered King County a lower contingency fee, which means they will keep less of any fees recovered from the case, suggesting a relative lack of enthusiasm among King County public officials.
The King County case was filed after a nearly identical lawsuit in San Francisco and Oakland was thrown out. In that case, San Francisco and Oakland – represented by the same group of trial lawyers – failed to show any direct connection between emissions from the companies in the state to the climate change related damage in the cities.
King County will have an even tougher time making this case given that the none of the companies have any significant operations in the area.
Is there a coordinated campaign against Exxon and other energy companies? Eikenberry is hardly the first person to say so. But what’s beyond doubt is that these climate lawsuits face an uphill battle, especially as more and more cases are thrown out in federal court.