By Dana Drugmand
The U.S. Chamber of Commerce, which historically has worked to block climate policy and undermine international action, has proposed sweeping new rules to help fossil fuel companies fend off liability lawsuits seeking to hold them accountable for costly climate impacts.
The Chamber’s Institute for Legal Reform released a pair of reports in March that sharply criticize public nuisance and municipal lawsuits against large corporations including fossil fuel producers. One of the reports contains a list of “solutions” that include barring local governments from bringing liability suits, restricting which industries can be targeted in suits and restricting state courts’ authority to hear certain claims or their ability to order certain remedies. That report was written by three former state attorneys with long histories of defending fossil fuel interests.
“The Chamber’s real concern with municipal climate litigation is to protect its polluter funders from having to cough up the real documents and truthful testimony required by court proceedings,” Sen. Sheldon Whitehouse, who previously served as Rhode Island’s attorney general, told Climate Liability News.
“Municipalities are independent corporate entities that have every right to sue in their own names. Municipal litigation in no way prevents states from pursuing legal action, nor does it usurp state authority.”
The Chamber’s argument is that the fossil fuel industry should be insulated from litigation because climate change is a political issue best handled by the legislative and executive branches of government. Fossil fuel companies have already used that argument to convince two federal judges to dismiss suits against them by the cities of San Francisco, Oakland and New York, although those dismissals are being appealed.
Patrick Parenteau, a professor at Vermont Law School, said the Chamber’s proposals are little more than a red herring as public nuisance cases do not threaten the authority of the other branches of government. “Indeed, municipalities have been forced to turn to the courts for relief due to the failure of the other branches to take decisive corrective action and in the case of the Trump administration, to take actions designed to propel the country off the climate cliff,” Parenteau said. “Courts are understandably cautious about not overstepping their authorities but they are also constitutionally bound to adjudicate the rights and responsibilities of the parties that come before them.
“In our system of justice, it is up to a jury to decide questions of causation, damage, and liability,” he added. “Of course that is the last thing that the oil companies or the Chamber of Commerce want to see happen, and why they are so intent on throwing these cases out of court or shielding them from liability.”
According to Catherine M. Sharkey, a New York University law professor and an expert in torts, products liability and administrative law, the claims in these climate suits are nothing extraordinary. In her amicus brief supporting New York City in its appeal, she wrote, “nuisance liability plays a potentially positive and economically justified role in forcing actors to internalize the harms that their activities cause.”
The Chamber has written friend-of-the-court briefs supporting the companies in that litigation. The pair of reports released in March attempt to extend those arguments to forestall future suits.
One report, titled “Waking the Litigation Monster: The Misuse of Public Nuisance,” reviews the history of public nuisance as a tort, arguing that it was improperly expanded beyond its narrow origin to address hazards resulting from industrial activities like chemical dumping and asbestos use and the sale of dangerous products such as tobacco and lead paint.
The report claims that “public nuisance is not needed to fill gaps” that the political branches already occupy. But as Karen Sokol, associate professor of law at Loyola University College of Law in New Orleans, wrote in an op-ed for the Center for Progressive reform, the courts do have a role because the political branches have failed to address the climate crisis.
“State tort law is urgently needed to address the myriad climate change harms exacerbated by the federal government’s inaction,” she wrote. “This is the gap-filling role that state tort law has been serving for this country’s citizens for decades.”
The other report, “Mitigating Municipality Litigation: Scope and Solutions,” proposes ways to prevent more of these suits from being filed.
“The feeding frenzy of municipal lawsuits not only stands in the way of justice by making it harder to resolve cases, but also undermines states’ authority,” Harold Kim, chief operating officer of the Chamber’s Institute for Legal Reform, said in a press release.
The Chamber’s report outlines strategies for states to quash municipal lawsuits, including:
- Eliminate the power of local governments to bring suits altogether, or substantially limit it by requiring state approval of municipal suits. Another possibility is to prohibit the hiring of outside counsel by municipalities.
- Limit the defendants that can be sued; in other words, provide immunity for certain industries or companies.
- Limit what constitutes a public nuisance.
- Deprive municipal plaintiffs a forum to sue by restricting state courts’ authority to hear certain claims or their ability to order certain remedies.
Parenteau called these recommendations “preposterous” and said the reports serve as “just more right wing arm-waving to divert attention from the very real environmental and economic damage that climate change is doing to communities all across the country.”
“Innocent people don’t need immunity,” he said.
Who is Behind The Reports?
To produce the report outlining ways to stop municipal suits, the Chamber turned to a roster of players with a history of defending fossil fuel companies and promoting industry interests.
They include former Washington State Attorney General Rob McKenna, former Maine Attorney General Drew Ketterer, and former West Virginia Solicitor General Elbert Lin.
McKenna, who served two terms as AG from 2005-13, now works with the firm Orrick Herrington & Sutcliffe, where he co-chairs its public policy group and represents corporate clients such as Microsoft and Chevron. He is listed as an attorney for Chevron in the King County, Wash., climate suit against several oil companies, and last year appeared in ads opposing Washington’s carbon fee ballot initiative.
Ketterer was the attorney general of Maine from 1995-2001 and is a founding partner of Ketterer & Ketterer law firm. According to the firm’s website, the firm “represents national and multi-national corporations that are regulated or sued by state Attorneys General in all 50 states. The law firm formerly or currently represents for-profit colleges, the firearms industry, pharmaceutical companies, automobile manufacturers and petroleum companies.” Ketterer also wrote an op-ed for a Maine newspaper last year opposing climate liability suits.
Lin was Solicitor General in West Virginia from 2013-17, when he led West Virginia’s legal challenge (along with other states) to the Obama administration’s Clean Power Plan. He is currently at a law firm based in Richmond, Va.
The “Waking the Litigation Monster” report was prepared by Joshua K. Payne and Jess R. Nix, attorneys with the Alabama-based law firm Spotswood Samson & Sansbury. The firm specializes in representing large corporate clients such as energy companies and financial firms.
The Chamber’s Institute for Legal Reform (ILR) touts itself as “the most influential legal reform organization in the country.” Founded in 1998, its purpose is to mitigate liability risks to businesses. ILR advocates for legal reforms through research, communications campaigns and aggressive lobbying. The organization, which does not disclose its funders, spent an average of $25.44 million annually on lobbying between 2015-18, according to data from OpenSecrets. According to Chamber Watch, a watchdog site run by the organization Public Citizen, the “ILR’s primary mission is to lobby to make it harder to for consumers, workers, and small businesses to go to court to hold corporations accountable for wrongdoing.”
The Chamber’s History of Opposing Climate Action
The Chamber of Commerce, which represents more than 3 million corporations but does not disclose its members, has a long history of fighting against consumer and environmental protections and regulations. The Chamber was a founding member of the Global Climate Coalition, an industry front group that actively worked to undermine climate science and to influence the UN’s climate negotiations. The Global Climate Coalition disbanded in 2002, but the Chamber continued to circulate climate denial talking points and lobby against climate policies. The Chamber successfully opposed the Waxman-Markey cap-and-trade bill in 2008, and more recently has challenged the Clean Power Plan in court and funded a study vastly overstating the potential costs of the Paris Agreement, which President Trump cited in justifying his decision to withdraw the U.S. from the global climate accord. That study was debunked by numerous climate experts.
Just as Big Oil has toned down its outright denial of climate change, the Chamber has also shifted its public stance. The Chamber’s website acknowledges that humans contribute to climate change and that “inaction is not an option.” However, the Chamber continues to lobby against climate legislation while arguing that courts should leave the issue to those branches.
“The Chamber has consistently used deception, campaign spending, and bullying to fight any serious climate policy in the political branches,” said David Arkush, managing director of Public Citizen’s climate program. “It’s beyond disingenuous to argue that the political branches should solve a problem when you’re fighting hard to make sure they don’t.”
Whitehouse called out the Chamber’s behavior in an amicus brief supporting a set of California cities and counties suing fossil fuel producers. The suits are currently under appeal in the Ninth Circuit Court of Appeals.
“The fossil fuel industry and its ally the U.S. Chamber have used political pressures to block executive and legislative action on climate change. They then turn around and argue in court that climate change is an issue to be addressed by the political branches of government they have blocked,” he said. “In fact, it’s the job of courts and juries to provide a forum where the politically mighty stand as equals with those they have harmed. It’s no surprise that the Chamber as the agent of the polluters would prefer the forum they have rigged.”
Whitehouse’s brief concludes with the request that the court recognize the Chamber’s arguments as “rent-seeking, self-interested pleas to complete inaction.”