By Bobby Magill
Major pipeline and logging companies have long used lawsuits to intimidate environmental groups opposed to their projects. Could fossil fuel companies use similar tactics against plaintiffs trying to hold the firms accountable for their contributions to climate change?
In the most chilling example, Resolute Forest Products sued Greenpeace last year under the Racketeer Influenced and Corrupt Organizations Act, or RICO, claiming environmental groups engineered an illegal conspiracy by soliciting donations to oppose logging in Canada’s boreal forest. Energy Transfer Partners, the company building the Dakota Access Pipeline, filed a similar suit in August against Greenpeace and two other environmental groups.
A court on Oct. 16 tossed out Resolute’s case against Greenpeace, but there is concern that companies named in climate liability lawsuits could use similar tactics to intimidate local governments and citizens who turn to the courts.
“There is long history of industries taking a ‘shoot the messenger’ approach when it comes to environmental litigation, and the fossil fuel industry has certainly taken that approach recently,” said Vic Sher, a partner a law firm representing three local governments in California suing 37 fossil fuel companies to hold them accountable for their contributions to climate change. “They seem to treat attacking anyone who dares try to hold them accountable as just another way of doing business.”
The cases, filed by Marin and San Mateo counties, Calif., and the city of Imperial Beach, Calif., are among several filed recently in state and federal courts, in addition to separate state investigations, seeking to force fossil fuel companies to pay for the impacts of global warming.
Recent studies have attributed up to half of human-caused global warming to 90 fossil fuel companies over the last 150 years. Research has shown that the largest companies, including Exxon, studied climate science themselves and knew that their products were harmful to the climate but chose instead to mislead the public and cast doubt on the climate science. Exxon did not respond to requests for comment.
Fossil fuel companies named in the climate liability lawsuits see the cases as a threat and are expected to vigorously defend themselves in court. But experts disagree whether they would take a cue from firms using anti-racketeering laws to shut down opposition to logging and pipeline projects.
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, said that municipalities and their employees acting in their official capacity are exempt from RICO suits. Many states also limit SLAPP suits — legal action, such as libel or slander suits, filed by a corporation intending to silence and intimidate critics by forcing them to bear court costs.
“It would be almost unthinkable that a fossil fuel company, represented by lawyers from the nation’s largest and most prestigious law firms, would file a lawsuit accusing a municipal government of civil conspiracy for seeking damages for climate impacts,” Burger said. “Then again, how many times have we had to say ‘That’s unprecedented!’ in recent years?”
Ken Kimmell, president of the Union of Concerned Scientists, which led the study tracing specific levels of global warming back to Exxon and other fossil fuel companies, said in an Oct. 17 blog post that fossil fuel companies are likely to stick to conventional defenses. He said they will mainly try to show in court that they can’t be held legally liable for any climate impacts under existing law and that the plaintiffs’ claims are beyond the court’s competence to decide.
Kimmell said Wednesday that the climate liability cases will be litigated on the merits, provoking serious discussion about who is responsible for climate change, and courts are unlikely to entertain countersuits designed to intimidate the local governments filing suit against the companies.
“I don’t think those types of intimidation tactics are going to work at all,” he said. “I don’t think they have any kind of counterclaim they can file or a whole lot they can do by way of intimidation.”
Other experts say there are a variety of other tactics fossil fuel companies could use to discourage climate liability suits and stall cases currently in court.
Carroll Muffett, president and chief executive of the Center for International Environmental Law, said fossil fuel companies can turn to industry-friendly states to help them halt other states’ investigations and clamp down on company information that can be revealed in court.
For example, Exxon filed a lawsuit in a Texas federal court in 2016 to block investigations by the New York and Massachusetts attorneys general into what the company’s own scientists knew about climate change decades ago and the actions the company took to mislead the public.
Environmental groups and other nonprofits, including 350.org and the Rockefeller Brothers Fund, were subpoenaed by Exxon’s lawyers as part of the case.
Exxon’s suit gained quick traction with U.S. District Judge Ed Kinkeade declaring that the Massachusetts attorney general may have acted in bad faith by starting the investigation because politics were a motivating factor. But in a surprise move, Kinkeade had the case moved from Texas to New York, where U.S. District Judge Valerie Caproni made Exxon refile its complaints and signaled she would be much less sympathetic to the oil giant’s arguments.
Industry-friendly state attorneys general have been employing their own intimidation tactics, Muffett said.
For example: Oklahoma Attorney General Mike Hunter and 12 other Republican state attorneys general signed a letter to California Insurance Commissioner Dave Jones in June, threatening legal action against him and accusing him of publicly shaming energy company investors. This was in response to his call for insurance companies to divest from the coal industry and publicly disclose their invetments in coal. The letter said such disclosures are illegal and criticized California’s related Climate Risk Carbon Initiative, an effort to evaluate how California insurers may be impacted by the effects of climate change.
Muffett said the fossil fuel industry is increasingly turning to state legislatures to go to bat for them.
“Exxon and other companies will go to friendly state legislatures and state governments and try to head off completely legit litigation by that political root,” Muffett said.
He cited a bill introduced in the Texas House of Representatives early this year that proposed to bar a defendant’s “theories, beliefs or statements on climate change or global warming” from being used as evidence in a fraud case.
If the bill had passed, it could have barred Exxon from having to disclose evidence in climate liability cases, according to the Austin American Statesman. The bill stalled in committee.
“The legislator who introduced it very explicitly said he was doing it because of Exxon and to protect companies like Exxon,” Muffett said. “The week he formally launched it, ALEC made him their legislator of the week. We’ve seen a variety of tactics already rolled out.”
ALEC, the American Legislative Exchange Council, is an organization of conservative state lawmakers who promote limited government and free-market policies in statehouses throughout the country. ALEC, which rejects established climate science, did not respond to a request for comment.
Finally, fossil fuel companies could easily turn to the court of public opinion to make lawsuits trying to connect the dots between fossil fuel companies and sea level rise on the shores of Marin County seem ridiculous.
“The industry is in a good position to go on the attack because they will get at least rhetorical defense from the administration,” said Joshua Galperin, director of the Yale Environmental Law and Policy Program.