As more and more cities are filing lawsuits against fossil fuel companies for their role in perpetuating climate change, the fossil fuel industry and its allies are responding with counterattacks in the courtroom and in the court of public opinion.
And while some legal experts characterize the industry’s actions as an attempt to delay litigation and dissuade other cities from taking similar action, public officials from the cities that have filed the lawsuits have a different perspective — to them, the fact that industry has pushed back against the litigation with such ferocity means that it’s working.
“When we filed these lawsuits against these companies that are represented by major law firms, we figured they would try to do whatever they could to draw out the litigation,” Kate Sears, a county supervisor in Marin County, California, which filed a lawsuit against fossil fuel companies last summer, told ThinkProgress. “What they are doing now is so ridiculous that it really makes me think that they are quite concerned about the strength of these lawsuits.”
Since July 2017, eight cities and counties in California, as well as New York City, have filed lawsuits against major fossil fuel companies for their role in climate-fueled consequences like sea level rise and, in some cases, more frequent wildfires and droughts.
In each case, the plaintiffs allege that the fossil fuel companies created a public nuisance when they extracted and sold their product despite internal knowledge that burning fossil fuels contributed to dangerous climate change. If the claims are successful, the cities and counties hope that fossil fuel companies will help fund climate adaptation projects, like raising roads or building seawalls to protect against sea level rise.
Climate activists have cheered the recent wave of litigation as an important tool to hold fossil fuel companies accountable for their role in climate change, especially as the federal government continues to pursue a deregulatory and pro-fossil fuel environmental agenda. When New York City announced its lawsuit in January 2018, for instance, Bill McKibben, co-founder of 350.org, told ThinkProgress that the move represented “a major tipping point” in the global fight against fossil fuels.
But the fossil fuel industry — as well as its allies in conservative think tanks and industry trade groups — have responded with counter attacks aimed at painting the actions as activist litigation, based not on sound science or legal precedent but a conspiracy by a group of lawyers, public officials, and environmentalists.
In one instance, Exxon — the largest oil company to be named in all nine climate liability lawsuits that have been filed in the last year — has taken its fight against climate liability lawsuits to federal court.
The motion filed by Exxon in January in a Texas district court, alleges that the spate of lawsuits challenging the company’s role in knowingly perpetuating climate change amount to a violation of the company’s First Amendment rights.
In the motion, Exxon also accuses city officials and attorneys of working together in a “conspiracy” to “coerce ExxonMobil…to adopt policies aligned with those favored by local politicians in California.” As part of that conspiracy, the motion also mentions separate cases currently being pursued by New York and Massachusetts state attorneys general, which are investigating whether Exxon broke the law by failing to fully disclose the risks of climate change to its investors.
Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law, says that, legally speaking, Exxon’s claims of a conspiracy or violation of its First Amendment rights are “nonsense.” But Burger sees something more disturbing in the legal action taken by Exxon against the cities filing lawsuits: another example of a growing trend by companies to try to silence opposition through litigation.
“In my view, it’s quite dangerous,” Burger said of the motion, which he likened to a strategic lawsuit against public participation, or a SLAPP lawsuit, traditionally meant to censor or silence critics by creating an overwhelming burden for potential plaintiffs to overcome. “There is a real risk that these things are intended to and will succeed in chilling speech and intimidating local government officials from taking progressive action.”
Thus far, the strategy does not appear to be working in Exxon’s favor. Just days after the company filed its motion in the Texas court, New York City announced that it would be following in the California municipalities’ footsteps by filing its own lawsuit against five major fossil fuel companies, including Exxon.
“I’ve seen tactics before to try to wear down people representing the public, to have this fight through attrition,” said Marin County Supervisor Sears. Sears previously worked for the California Attorney General’s Office bringing legal action against predatory lenders. “It’s also why I feel so strongly about how important it is to stand up and take action to represent the public when they have been harmed.”
But fossil fuel companies aren’t the only ones working to derail the growing wave of climate litigation: Outside of the courtroom, fossil fuel-associated trade organizations have launched several public relations campaigns aimed at undermining the motives for bringing litigation against fossil fuel companies.
Following New York City’s recent lawsuit against five fossil fuel companies for their role in knowingly perpetuating climate change, for instance, two major trade groups launched a series of public campaigns meant to paint the lawsuits as politically-motivated activist litigation.
Both the National Association of Manufacturers (NAM) and the Independent Petroleum Association of America (IPAA) — nonprofit trade organizations with ties to the fossil fuel industry — have publicly attempted to undermine the lawsuit through tweets or op-eds meant to call attention to past statements and actions by New York City Mayor Bill de Blasio.
One series of tweets, sent in late January by Energy In Depth — the public outreach arm of the IPAA — paints de Blasio as both an activist mayor focused on the destruction of the oil and gas industry, and a hypocrite who champions climate action while riding around in SUVs.
NY Mayor Bill de Blasio, whose city sued 5 energy companies this month, claiming damage to the city from climate change, told Vermont Sen. Bernie Sanders: “Let’s help bring the death knell to this industry that’s done so much harm.”https://t.co/1mooypTeHL https://t.co/wqh8Blt6MC
— Energy In Depth (@EnergyInDepth) January 26, 2018
— Energy In Depth (@EnergyInDepth) January 12, 2018
Energy In Depth bills itself as an education and public outreach campaign aimed at “getting the facts out about the promise and potential of responsibly developing America’s onshore energy resource base.” It claims the IPAA, as well as numerous regional oil and gas trade associations, among its members. But according to an internal memo obtained by DeSmog in 2011, Energy In Depth was created through funding provided by major oil and gas companies, including BP, Chevron, and Shell — three companies named as defendants in New York City’s climate lawsuit.
Meanwhile, the National Association of Manufacturers’ political action committee has received thousands from Exxon, including a recent $5,000 donation in 2017 from Exxon’s senior vice president Neil Chapman. Of the five companies named in New York’s lawsuit, three have executives that serve on NAM’s Board of Directors: both John Mingé, president of BP, and Andrew Lundquist, senior vice president of government affairs at ConocoPhillips, serve as board members, while Exxon’s Chapman sits on the executive committee.
In California, cities and counties have also been the subject of at least one negative op-ed, published in the Sacramento Bee by former Republican Congressman and California Attorney General Dan Lungren. In his op-ed, Lungren accuses the California cities and counties of hypocrisy for suing fossil fuel companies over the cost of climate change while ignoring those same costs in communications with potential investors.
“This is just another example of activists trying to replace the power of the people and their elected representatives with the decision-making of the courts in an area in which judges have no particular expertise,” Lungren wrote. “Whatever their intentions, these cities demonstrate a true legal risk — to their own city budgets and their citizens, rather than to oil companies.”
Lungren currently consults with the Institute for Legal Reform, an offshoot of the U.S. Chamber of Commerce. As an organization, the U.S. Chamber of Commerce has been vocally opposed to climate regulations, like the Clean Power Plan. In 2012, the Chamber received at least $2 million from fossil fuel companies named in some of the California lawsuits, according to voluntary financial disclosures analyzed by the Center for Public Integrity. Lungren did not disclose that information in his op-ed.
Legally speaking, these public relations campaigns are unlikely to impact the outcome the climate liability cases should they proceed to trial.
“These cases, the plaintiffs here are seeking damages for costs they are incurring as a result of climate change. They are viable claims on their face and there’s no reason, legally, for the court to treat them as anything other than what they, on their face, appear to be,” Burger said. “There’s no reason for a court to treat them any differently just because of some op-eds being written impugning the character of those who are bringing the lawsuits.”
But the tactics follow a well-worn pattern used by the fossil fuel industry and its allies before, one dictated by spreading doubt and misinformation to push the consensus on climate issues to the margins.
“I think we saw in the past this unbelievable campaign they supported to create uncertainty about climate change,” Supervisor Sears said. “Raising these absurd allegations is what looks to be yet another campaign to try to mislead the public about these lawsuits and what they are intended to do, and the intentions and the integrity of the elected officials. It’s unfortunate.”