Politicians in New York just can’t seem to break their climate lawsuit habit despite being dealt three devastating defeats in the past four years. The latest effort is from New York City Mayor Bill de Blasio who, with just eight months left in his term, introduced a consumer fraud climate lawsuit aimed at several energy companies on Thursday.
De Blasio has experience with this sort of litigation: the city’s first attempt to hold producers liable for climate change – a public nuisance lawsuit – was handily rejected in 2018 by U.S. District Court Judge John F. Keenan, who ruled that the courts are not the proper venue to deal with climate change. As Judge Keenan stated in his decision:
“The serious problems caused [by climate change] are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”
New York City then appealed Judge Keenan’s decision, only to be defeated a second time when, earlier this month, the U.S. Second Circuit Court of Appeals ruled against the city’s case, reaffirming the trial court’s conclusion that litigation is the wrong way to address climate change:
“The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’” (emphasis added)
Sandwiched between those two rulings, the New York Attorney General was handed its own loss in late 2019. Former Attorney General Eric Schneiderman opened an investigation into ExxonMobil in 2016, with allegations based on the debunked “Exxon Knew” theory.
After a multi-year investigation and the review of over four million documents, however, the New York attorney general found nothing to support its unfounded claim that the company hid knowledge about climate change from the public. This forced the office to change the justification of its investigation twice over and, by the time the attorney general finally filed a formal complaint against ExxonMobil in October 2018, the lawsuit focused on a narrow accounting issue.
Interestingly enough, one month prior to the New York attorney general’s case being filed, the U.S. Securities and Exchange Commission concluded an investigation of ExxonMobil that examined issues very similar to those raised in the office’s complaint. Following this investigation, the SEC decided against taking any enforcement action against the company.
Considering this, it was no surprise that the attorney general’s lawsuit floundered, with the office even dropping key claims of its case at the 11th hour. As Bloomberg reported:
“New York rested its securities-fraud case against Exxon Mobil Corp. after nine days of trial testimony without appearing to produce any definitive evidence that the oil company intentionally misled investors about how it accounted for climate-change risks…” (emphasis added)
Weeks later, New York State Supreme Court Justice Barry Ostrager ruled against the attorney general, noting that he did not find the testimony of ExxonMobil employees “to be anything other than truthful.”
In fact, that decision was so definitive, the attorney general’s office chose not to appeal the ruling and “Exxon Knew” was officially dead.
Sher Edling’s Latest Courtship
Just three weeks removed from losing its last climate case, New York City enlisted the services of a different outside law firm this time around – Sher Edling, LLP. The firm is representing more than a dozen climate lawsuits filed by states and municipalities around the country and Vic Sher, a partner at the firm, has been a key player in pushing the climate litigation campaign. This change of representation effectively severs the city’s relationship with its last outside counsel – Matt Pawa and Hagens Berman.
Also supporting the city’s lawsuit as an outside lawyer is Michael Burger, the Executive Director of the Sabin Center for Climate Change Law at Columbia University, and Of Counsel at Sher Edling. Burger frequently speaks in favor of climate litigation and he submitted an amicus brief in support of New York City’s previous climate lawsuit that was rejected by the Second Circuit earlier this month.
Flawed Charges
New York City’s complaint is centered around many of the same “greenwashing” claims seen in the Massachusetts attorney general’s lawsuit. Specifically, the complaint cites marketing language used in advertisements and on products by the companies, as well as imagery, that it claims misled the public on the impacts of its products. One example notes a social media post from ExxonMobil highlighting its announcement that they “plan to further reduce greenhouse gas emissions in our global operation by 2025, while aiming for industry-leading GHG performance by 2030…” This post, the complaint points out, was accompanied by an “image with a blue sky and green grass.”
Targeting an energy company with a consumer deception lawsuit because it publicly stated its climate goals along with a stock landscape photo is astounding. It also begs the question, if using a nature photo is tantamount to deception, does New York City claim that they have the authority to dictate what imagery is appropriate for every company to use in its advertising?
In fact, the company’s motion to dismiss in the Massachusetts case is focused on these same “absurd” claims that politicians should be able to decide which speech is acceptable:
“Is the attorney general going to decide which companies get to use which logos? Is the attorney general going to decide that only companies it approves of can have logos with a yellow sun, a blue sky and green grass, and companies it doesn’t approve of have to have skull and crossbones? It’s an absurd argument.”
New York City also claims that the energy companies deceived consumers by touting their efforts to address climate change by investing in clean energy systems and technologies to reduce emissions. Specifically, the lawsuit alleges that the companies’ public discussion of their climate efforts is misleading because those investments are small relative to their overall capital expenditures. This allegation is itself deceptive, as it ignores the fact that those investments are worth tens of billions of dollars, as EID Climate noted in a recent post.
Specifically, the complaint points to one advertisement from BP, titled “Blade Runners,” which states that the company “is one of the major wind energy businesses in the US.” The city claims this statement is misleading because the company owns roughly 1 gigawatt (GW) of wind capacity, which, as the complaint states, is “a mere 1% of total installed wind capacity in the United States (approximately 100 GW).”
At the least, the city’s downplaying of the size of BP’s wind generation investment is disingenuous. This is because the complaint seems to intentionally compare BP’s capacity to total U.S. capacity – along with the capacity of the three largest manufacturers of wind turbines – in an attempt to minimize this investment and make 1 GW appear insignificant. To put this in perspective, 1 GW means BP has more wind capacity than all of the onshore wind capacity in Nevada, Utah, Arizona, Tennessee, New Jersey, Connecticut, Rhode Island and Alaska – combined.
De Blasio Fails To Meet His Own Environmental Standard
Beyond de Blasio’s inability to understand that climate litigation has been a complete loser in New York, he also fails to live up to his own standard of personal action to meet environmental challenges. New York City’s complaint states:
“A NYC consumer might purchase fewer—or no—fossil fuel products if provided with accurate information that fossil fuel use was a primary driver of climate change and the resultant dangers to the environment and people. NYC consumers might opt to use the City’s vast public transit system, bike, or walk; avoid or combine car travel trips; carpool; switch to more fuel efficient vehicles, hybrid vehicles, or electric vehicles; use a car-sharing service; purchase electric instead of natural gas appliances; or choose any combination of these.” (emphasis added)
But as POLTICO reported in 2019, “De Blasio’s climate rhetoric on the stump doesn’t mirror reality back home.” This is because De Blasio has spent his tenure “known in New York City for being shuttled from his mayoral mansion in an SUV, albeit a hybrid model, to his gym in another part of town.”
So, either what the city’s lawsuit is claiming is inaccurate, or De Blasio doesn’t see himself as your average “NYC consumer.” Whatever the case, de Blasio would probably benefit by just finding a gym closer to home.
