As the U.S. Supreme Court prepares to hear oral arguments in BP P.L.C., et al. v. Mayor and City Council of Baltimore, it’s important to remember that this case – and the several other climate lawsuits leveled against energy producers in recent years – are not driven by the desire to address climate change. Rather, these efforts are part of a politically motivated campaign to pressure major energy companies to stop producing traditional energy while generating massive payouts for the lawyers and activist groups involved.
As Vic Sher, the partner at the law firm Sher Edling, who is arguing Baltimore’s case in front of the high court, said at the 2018 Environmental Law Conference at Yosemite:
“These are state law doctrine, and I agree very much that these cases are not about stalling climate change. They’re about damages that particular communities have to pay, the cost of localized, particularized impacts on these communities.” (emphasis added)
In stark contrast, American energy companies are utilizing breakthrough technologies to address climate change, as Energy In Depth has noted. This includes carbon capture and storage systems, a commitment to end routine flaring, improving emissions efficiency, developing tools to improve leak prevention, detection, and repairs, especially methane emissions.
This is progress that is taking place right now, as opposed to climate lawsuits that, as the Susan Herdina, the Corporation Counsel for Charleston, S.C. said as that city introduced its case last year, “It will take some time to get through this process, but, we can wait.”
The Litigation Campaign Isn’t Concerned About Addressing Climate Change
It’s no secret that climate litigation is a highly coordinated national campaign, yet considering the significant time and resources plaintiffs and lawyers are allocating to litigate these cases, there is a glaring omission from their efforts: addressing the issue of climate change.
As openly acknowledged, these cases are all about money and ending oil and natural gas production. In a column this month for the New Jersey Star-Ledger, Jeff Tittel, the director of the New Jersey Sierra Club, wrote frankly that climate lawsuits don’t actually do anything to address climate change:
“These lawsuits are not the solution to climate change.”
Last month, an attorney with EarthRights International who counts Boulder and San Miguel as clients in their Colorado climate lawsuit, told the media that their goal isn’t to address climate change but instead achieving financial gain and raising energy prices for consumers. As KSUT reported:
“[The EarthRights International attorney] says the first aim for winning the lawsuit is to collect damages for San Miguel and Boulder. But there’s a secondary aim too. His hope is by shifting the costs of producing the costs of fossil fuels onto the companies, the lawsuits can also shift behavior.
‘Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.’” (emphasis added)
The most egregious example of these lawyers and activist groups making their true intentions known took place at a Rockefeller-hosted meeting in New York City in 2016 – a meeting from which much of the litigation campaign stems. At that gathering, environmental activist groups and plaintiffs’ attorneys discussed potential goals that they hoped to achieve through a “campaign” against the industry. As the agenda notes:
“To delegitimize them as a public actor
To force officials to disassociate themselves from Exxon, their money, and their historic opposition to climate progress, for example by refusing campaign donations, refusing to take meetings, calling for a price on carbon, etc.
To call into question climate advantages of fracking, compared to coal.
To drive Exxon & climate into center of 2016 election cycle.” (emphasis added)
Under the heading “Legal Status and prospects,” the agenda notes how the campaign could go about achieving its politically motivated goals, including working with state attorneys general, the U.S. Department of Justice, using tort law and other avenues. The agenda outlines questions for guiding discussion on which legal avenues should be pursued, stating:
“Which of these has the best prospects for successful action? For getting discovery? For creating scandal? Shortest time line? Do we know which offices may already be considering action and how we can best engage to convince them to proceed.” (emphasis added)
Conspicuously missing from this agenda, however, is any mention of how litigation would actually drive solutions around climate change.
A Blatant Attempt To Freeze Free Speech
This emphasis on achieving political wins against energy companies rather than furthering efforts to effectively address climate impacts can be seen in Massachusetts attorney general’s climate lawsuit. As a recent company court filing points out, Massachusetts Attorney General Maura Healey’s aim is to pressure the company into aligning with the attorney general politically:
“The Office of the Attorney General for the Commonwealth of Massachusetts is at the forefront of an effort to cleanse the public square of political opposition it believes has ‘delay[ed] meaningful action to address climate change.’ … Those, like ExxonMobil, who decline to parrot the Attorney General’s call for an immediate transition to renewable energy are not simply diverse viewpoints in a public debate with state, federal, and global policy implications, but targets who must be silenced through ‘lawfare.’” (emphasis added)
Echoing this anti-free speech message, Harvard professor and longstanding supporter of the climate litigation campaign Naomi Oreskes has advocated to regulate the public communications of energy companies simply because she disagrees with them. As, she told the New Zealand Listener in 2020:
“The fossil-fuel industry exploited the journalistic ideals of fairness, objectivity and particularly the idea of balance to manipulate journalists into presenting what was essentially propaganda, what we would now call fake news, as the other side of a science story – not as a political story or an economic story but as the other side of a science story, when, in fact, it wasn’t a science story at all.
All previous electronic media – radio, telephone, television – have been regulated. There’s absolutely no reason why this newest form should not be regulated. And people who cry ‘free speech! free speech!’ are ignoring history.” (emphasis added)
Fellow activist Amy Westervelt also believes that climate lawsuits aren’t about finding solutions – or even justice – but rather silencing dissent. On her Drilled podcast in 2018, she said:
“Holding the industry accountable for manufacturing climate denial isn’t about finding a bad guy or even strictly about justice, although of course we love a good bad guy … it’s about putting climate denial to rest once and for all and removing key obstacles for action.” (emphasis added)
A Fishing Expedition
As we’ve seen repeatedly, the goal of many of these climate lawsuits isn’t about driving solutions, but rather furthering the discovery process in order to obtain internal documents from companies and trade associations for “creating scandal.” The thought being that these documents would then lead to further litigation and greater political leverage. In addition to being mentioned at the 2016 Rockefeller meeting cited above, this focus goes back even farther, as it was spelled out in the summary of the infamous 2012 La Jolla conference:
“While it is never an easy decision to bring a lawsuit, they noted, litigants must understand that if they pursue such a course they should expect a protracted and expensive fight that requires careful planning. Among the issues discussed were the importance of seeking documents in the discovery process as well as the need to choose plaintiffs, defendants, and legal remedies wisely.” (emphasis added)
More recently, Benjamin Franta, a PhD student at Stanford and activist, echoed this sentiment, drawing a direct connection between greater discovery and the ability to shape corporate action. As he said at a 2020 panel:
“So, we can learn from that, we can, this is my personal opinion, we can make it go faster than the tobacco case. It’s a powerful investigation tool, as was mentioned before. Tobacco is largely the poster child of corporate deception, because of the litigation, because of the 15 million documents that were uncovered through discovery, that’s how those documents were found. We have the tip of the iceberg for the ‘delay’ apparatus that’s been in operation for decades through scholarly research, we found the tip of the iceberg, but through litigation we can find much more, as well, and put a stop to bad corporate behavior that’s ongoing.” (emphasis added)
It must be disappointing for these activists, however, because even after 4 million pages of internal documents were produced by ExxonMobil through the New York attorney general’s climate lawsuit which the office litigated and eventually lost over four years, there was still no “smoking gun” that supported their outlandish accusations of climate fraud and deception against the company.
Obscene Attorney Fees
Beyond political pressure, the other defining feature of the climate litigation campaign is the pursuit of money. EID Climate has shown how various Rockefeller organizations have manufactured the entire campaign by spending tens of millions of dollars to fund activist groups, so-called “media outlets,” legal and public relations teams and academic research, all helping to enrich those operating those organizations.
For example, the plaintiffs’ law firms which often serve as outside counsel for the climate lawsuits filed by various states and municipalities stand to profit from enormous payoffs if they achieve a favorable verdict or settlement. Sher Edling, which is representing the plaintiffs in more than a dozen of these cases and is at the center of the activist network, signed a contingency fee agreement with San Francisco that entitles the law firm to 25 percent of the first $100 million a potential award, 15 percent of the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million awarded.
In Boulder and San Miguel’s lawsuit, outside law firms are positioned to “receive up to 20 percent of the award,” even while taxpayers remain on the hook for the costs associated with the case.
These lawyers are convincing local officials to file climate lawsuits by citing potential revenue opportunity. For example, last summer, while Hawai’i County started backtracking on filing its own lawsuit because similar cases around the country have already been defeated, Councilman Aaron Chung publicly acknowledged why he believes the lawsuit should go forward despite the shaky legal ground, stating:
“But if we can get some money from [the companies’] deep pockets, then sure, why not.”
Of note, possible contingency fee agreements for many of these lawsuits aren’t public, so it’s likely that even more money is one the line.
Conclusion
While the American energy industry is leading the way in addressing climate change, elected leaders, plaintiffs lawyers, and activists are wasting time and resources with climate lawsuits that they admit are not solutions and will only generate political power and financial payouts.
