By Karen Savage
An attorney from an industry trade group tried to insert panelists representing the oil industry into a panel on climate litigation held during a conference at the University of Hawaii last month.
The attorney, Phil Goldberg, was hired by the National Association of Manufacturers (NAM) as part of a campaign to oppose and discredit a wave of climate lawsuits against the fossil fuel industry. One day before the conference, titled Climate Change Science and Litigation, Goldberg sent an email to organizer Denise Antolini, asking for the panel to be delayed so it could include oil industry defenders, “to bring needed balance to your program.”
Antolini, a law professor and associate dean for academic affairs at the University of Hawaii’s William S. Richardson School of Law, said she has never received such a request in her 23-year career as a law professor. The event went on as scheduled, with both of Hawaii’s U.S. senators participating. Antolini responded to Goldberg with a letter.
“Your request to disrupt our public event was quite surprising, especially coming from far across the continent, from someone I’ve never heard of, on behalf of a private client with an apparently direct financial interest in chilling debate about climate litigation,” Antolini wrote, adding that Goldberg, who is based in Washington D.C., seems to have no understanding of the climate crisis facing Hawaii.
Goldberg also submitted a letter to the editor of the Honolulu Star-Advertiser criticizing the event.
NAM, a 123-year-old trade association, represents a wide range of the nation’s manufacturing companies which it frequently defends during major liability battles.
Once a prominent defender of Big Tobacco, NAM is currently Big Oil’s staunchest defender. It intervened in the landmark constitutional climate case, Juliana v. United States, but quickly backed out when a judge ordered it and the American Petroleum Institute—which also intervened—to respond to discovery requests. NAM has filed briefs defending the oil companies in cases across the country.
In 2017, NAM launched a campaign called the Manufacturer’s Accountability Project to coordinate a public relations campaign to discredit communities filing climate liability suits and the attorneys who represent them. NAM hired Goldberg, a managing partner for Shook, Hardy & Bacon and a former coal lobbyist, as special counsel for MAP. Goldberg’s law firm gained notoriety for defending the tobacco industry in its battle against liability for deceiving the public about the dangers of smoking in the 1980s.
Goldberg sent his email to Antolini the day before the conference was to begin, asking for it to be delayed.
“We ask that you postpone the panel discussion scheduled for after the elected representatives’ presentations until you can include panelists who can represent each side of the issue,” Goldberg wrote..
Goldberg said conference attendees should hear from individuals who disagree that suing the companies is an appropriate public policy solution to climate change.
“To the contrary, such lawsuits are highly political and counter-productive,” he said, adding that there is no tort wrong that needs to be remedied by the courts.
Goldberg’s letter to the editor in the Hawaiian newspaper was critical of a previous letter to the editor that Antolini and several co-authors had submitted to the same paper saying, “Hawaii taxpayers and communities should not foot the bill for the climate-induced damages to our island.”
“Lawsuits alone will not solve climate change but we must use every tool possible to protect our ecological health and regain past community resiliency. Communities that have filed lawsuits against Big Oil are seeking their day in court and asking that oil companies bear the massive costs of climate change to our daily lives.”
Goldberg maintained in his email that lawsuits aimed at holding the fossil fuel industry accountable for climate change have been rejected in multiple courts, including the Supreme Court.
“The Court explained that there is “no room for a parallel track” of tort litigation over climate change public policy and that setting climate change public policies were solely ‘within national legislative power’,” said Goldberg, referring to the Supreme Court’s ruling in Am. Elec. Power v. Connecticut.
Antolini in her response told Goldberg he not only “grossly mischaracterizes” the relevance of that case, but “misappropriates the quote—and gravitas—of Associate Justice Ruth Bader Ginsberg, deliberately, it seems, to create confusion in the mind of the reader.”
“She did not broadly say, as you indicated, ‘there is ‘no room’ for litigation over climate change public policy’,” Antolini said, adding that Goldberg also failed to mention that Ginsburg was speaking about federal, not state common law. “I would assume that as a practitioner in this area you would be well versed in this area of the law, so your mixing up of federal v. state law claims is really puzzling.”
The panelists at the event, which included legal experts as well as the Hawaii lawmakers, argued that Hawaii is uniquely vulnerable to the impacts of climate change and the courts present a viable avenue to recover the skyrocketing damages.
The fossil fuel industry has known for decades that its products cause climate change. Like the tobacco industry, it has worked publicly to deny the science while internally planning to protect its own business operations.