The attorney who won a $200 billion settlement from tobacco companies in the 90s has set his sights on an even bigger target.
When you want to sue the largest, most powerful companies on the planet, Steve Berman is the guy you call. He forced Jack-in-the-Box to pay $12 million for causing an E. coli outbreak that killed four children. He won a $215 million settlement against Enron for defrauding investors and wiping out employee retirement accounts. He represented auto dealers in a $1.6 billion lawsuit against Volkswagen for cheating on diesel emissions.
Berman is best known, though, for suing big tobacco in the 1990s. At the end of that fight, he helped negotiate a $206 billion settlement from cigarette makers like Philip Morris, R.J. Reynolds, and Brown & Williamson for causing cancer. It remains the largest legal settlement of its kind in history.
But Berman
is now working on a lawsuit that could be even bigger: He is suing five
of the world’s most powerful oil companies for causing climate change.
He represents Oakland and San Francisco in a lawsuit filed last
September demanding that Exxon, Shell, Chevron, ConocoPhillips, and BP
pay billions for sea walls and other defenses against ocean rise.Berman is best known, though, for suing big tobacco in the 1990s. At the end of that fight, he helped negotiate a $206 billion settlement from cigarette makers like Philip Morris, R.J. Reynolds, and Brown & Williamson for causing cancer. It remains the largest legal settlement of its kind in history.
Just like with tobacco, the case could hinge on whether these companies lied to the public about the dangers of their business model. Berman has evidence that companies like Exxon knew burning oil causes climate change as early as the 1950s. Internally, oil companies took steps to protect their offshore oil rigs and Arctic pipelines from global warming while publicly they denied the science—the same way cigarette makers did research into cancer while denying their product was harmful. “Defendants stole a page from the Big Tobacco playbook,” the lawsuit alleges.
Legally speaking, that argument might not be such a stretch. “The parallels to tobacco are quite clear,” Carroll Muffett, the president of the Washington, DC–based Center for International Environmental Law, told me.
Still, nobody has won a lawsuit like this and the oil companies I contacted didn’t seem to think Berman’s would be any different. “Should this litigation proceed,” a spokesperson for Chevron wrote in an email, “it will only serve special interests at the expense of broader policy, regulatory, and economic priorities.” Other, less biased observers also have doubts. “I’m not that sure actually,” said Martin Olszynski, a University of Calgary law professor who has researched the parallels between oil and tobacco. “It seems obvious that at some point the defendants will say, ‘But look, there was demand for our product.’”
Berman himself failed to win a similar lawsuit in 2012, when a court dismissed his attempt to hold Exxon and about two dozen other fossil fuel producers responsible for the sea rise swallowing an Alaskan village. But a lot has changed since then. Science linking individual corporations to climate change is more sophisticated. Incriminating oil company documents are surfacing. New court decisions—especially a recent ruling against lead paint companies—are removing legal barriers. Suing big oil could be one way to win real environmental gains in the Trump era. “We have the federal government claiming there’s no climate change, we have the EPA rolling back,” Berman told me in an interview from his office on the 33rd floor of a Seattle high-rise. “[We can] use the law to accomplish what politicians won’t do.”
The reason not to dismiss Berman is that he has a history of proving doubters wrong. When he entered the legal fight against tobacco companies in the 1990s, mainstream opinion was that he would be unsuccessful. The owners of brands like Marlboro and Camel had crushed hundreds of lawsuits attempting to link cigarettes to cancer and emphysema. “No one had ever won a tobacco case,” Berman said. His own law partner was wary of getting involved. But in late 1998, the industry surrendered and agreed to pay out hundreds of billions of dollars. The People Vs. Big Tobacco, a book about the case, described Berman as one of the “crucial players.”
The stakes are even higher in his big oil lawsuit. Berman is not just trying to get oil companies to pay for seawalls in the Bay Area. In a broader sense he’s attempting to hold them responsible for endangering all human life on earth. “This is different in kind from anything else,” Timothy Crosland, the director of a UK-based climate law group called Plan B, told me. “Once you get started, you get one case that goes through, this is an avalanche. It’s got the potential really to bring down the fossil fuel companies.”
For insight into Berman’s worldview it helps to go back to his 1960s upbringing in Highland Park, a Chicago suburb. “It was a really evolutionary time,” he said. “I grew up with a mother who was one of the first women to burn her bra.” His dad wanted to be a career Army officer but grew disillusioned by the Vietnam War and ended up running an insurance company. “He kind of became liberal himself,” Berman said.
Others he knew evolved from progressive to militant. They set off bombs and ran from the law. “They were elder brothers of some of my close friends and I’ve never seen them again,” Berman said. Though he’s not sure if they officially belonged to the Weather Underground, the left-wing organization that bombed US government buildings and banks in the 1970s and broke Timothy Leary out of jail, “they were in that genre of people out there doing radical stuff.” Berman chose to embrace the law. “The way to make change is to get trained in what the establishment does and make change through the process,” he later told the publication Super Lawyers.
Berman went to law school and moved out to Seattle, where he got hired by a firm that mostly did defense work for companies in industries like insurance. Berman was part of a smaller team at the firm that sued companies instead. In 1993, he met with a parent whose child had lost a kidney after eating at Jack in the Box and getting food poisoning. “I remember sitting in the room thinking, ‘This could have been my kid,’” he said. “I was so choked up I could barely talk.” His superiors at the firm didn’t want to take the case. “So I said, ‘I’m out of here.”
Berman and a colleague Carl Hagens formed their own firm, Hagens Berman. He’d wanted to set out on his own for some time and here was the perfect excuse. Two years later they settled with Jack in the Box for $12 million.
That case was tiny compared to what came next. In 1996, Washington’s attorney general hired Berman’s new firm to represent the state in a wave of public health lawsuits against tobacco companies. Soon Berman represented 13 states. “The quiet youthful [lawyer] worked brutal hours to make up for his firm’s small size, arriving at his office at six AM and staying until nine or ten PM six days a week,” reads the book Civil Warriors: The Legal Siege on the Tobacco Industry. His law partner was skeptical, according to Berman. “He was afraid we would lose the case,” he said. “If we devoted all our time to a losing effort and we didn’t have any income we could go under.”
It was a legitimate concern. By then hundreds of tobacco lawsuits had failed. Cigarette makers argued smoking was a personal choice. They pointed to research—often funded by the tobacco industry —casting doubt on the link between cigarettes and cancer. But several factors aligned to make the industry vulnerable to litigation. A series of whistleblowers revealed that tobacco companies knew smoking is addictive and causes cancer. Secret corporate documents showed companies did market research on how to target children with ads and branding. Mississippi Attorney General Mike Moore filed a lawsuit demanding tobacco companies pay the healthcare costs of smokers who’d become sick. And by 1998, 46 states were demanding the same.
Berman gave the opening statement at the trial in Washington in front of hundreds of people who had crowded into a Seattle courthouse. “I had a big poster that said, ‘The Industry’s Five Big Lies,’ and I went through each one,” he recalled. By then the industry was ready to surrender. Berman, Moore and others had been holding meetings with its leaders to negotiate the terms. On November, 1998, Big tobacco officially agreed to pay $206 billion to 46 states. It received immunity from lawsuits similar to the ones led by Moore and Berman. Yet it was still a massive victory. “We were pretty damn happy,” he said.
How can you prove that oil dug out of the ground by Exxon is causing a tiny Alaskan village to disappear?
Berman
now had a game plan for defeating powerful industries: Accuse them of
misleading the public to protect revenues, then find plaintiffs who are
suffering the consequences. In the late 2000s, he heard about a coastal
village in Alaska called Kivalina that would have to be relocated
because of rising oceans. The move could cost up to $400 million,
according to his lawsuit, and the Army Corps of Engineers said climate
change is to blame. Berman sued Exxon, Chevron, BP, ConocoPhillips, and
20 other fossil fuel producers on behalf of the villagers, arguing these
companies spread doubt and confusion about climate change knowing
communities such as Kivalina are in danger. Exxon, for instance, had run full-page New York Times ads about “unsettled science.”
“You’re not asking the court to evaluate the reasonableness of the
conduct… You’re asking a court to evaluate if somebody conspired to
lie,” Berman told The Atlantic at the time. Berman flew to Kivalina at one point. The village is built on an island off the west coast of Alaska. Its 400 or so indigenous residents had watched helplessly as shoreline disappeared, winter storms got fiercer, and waves lapped closer to the school. There was a pervasive feeling of despair. “The island is sad, sad that it’s going away,” he said. The magnitude of climate change hit him on the flight home. “You could see acres of dying trees from the pine bark beetle,” he said. “That was really striking.” A federal court dismissed the lawsuit, deciding that who’s to blame for climate change is a job best left to entities like Congress or the White House. But the real issue was causation. How can you prove that oil dug out of the ground by Exxon is causing a tiny Alaskan village to disappear?
“There is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time,” wrote US District Judge Saundra Brown Armstrong. It’s a tough obstacle to surmount. “In climate change there’s a lot of diffuse actors,” said the University of Calgary’s Olszynski. “It’s not just the oil companies.”
But there are several reasons Berman’s new lawsuit against big oil could be more successful. Whereas Kivalina was filed in federal court, he wants to represent the cities of San Francisco and Oakland in California state court, which he thinks may be less likely to decide the case raises political questions outside of its jurisdiction. And, he added, “Some people believe that there are more conservative judges on the federal bench.” The defense team for big oil is fighting to get the suit heard federally. The case was “going to be mired down for the next three or four months in a procedural battle,” Berman predicted.
There have also been big leaps in climate science. Researchers like Richard Heede have calculated
that close to two-thirds of greenhouse gases emitted over the last 150
years can be traced back to just 90 companies. Exxon, Chevron, BP, Shell
and ConocoPhillips are in the top ten. “We have better science,” Berman argued. “We think causation will be easier to prove.”
Incriminating oil industry documents, meanwhile, continue to surface. A report released in mid-November by the Center for International Environmental Law has new evidence that big oil was warned about the risks of global temperature rise nearly 50 years ago. “There seems to be no doubt that the potential damage to our environment could be severe,” explains a 1969 study prepared for the American Petroleum Institute by two Stanford scientists. This wasn’t a one-off thing. “From the late 1960s onwards up into the 80s those warnings from their own scientists grew more and more urgent,” Muffett, the November report’s co-author, told me. An internal Exxon memo from 1981 states that carbon emissions could “produce effects which will indeed be catastrophic—at least for a substantial fraction of the earth’s population.” By then the company had calculated that reducing its carbon footprint would hurt revenues. Internally, the industry began to protect itself from climate change. Companies designed taller offshore oilrigs and pipelines able to withstand melting permafrost. “[They] had a responsibility to warn the public,” Muffett said. Instead, Exxon, BP, Chevron and Shell formed a group known as the Global Climate Coalition that argued climate science “is not well understood” into the 90s.
These
are clear parallels to the cancer-denying days of big tobacco. But in
recent years the comparison has become harder to make. Big oil now
publicly admits the existence of climate change. “Reducing greenhouse
gas emissions is a global issue that requires global engagement and
action,” a Chevron spokesperson wrote to me. Berman must convince a
court that earlier industry denial campaigns created lasting damage.
Even with better science, questions of responsibility still loom. “In
the case of global climate change, a molecule of carbon is literally
around the world in seven days,” Scott Segal, an attorney who defends
energy companies, told the Washington Post in July. “The requisite causation needed for nuisance suits is missing and unprovable.”
You
could make the same argument about the coal industry. Or carmakers such
as General Motors. “If the oil company took the barrel of oil out of
the ground but it was consumed in the car, how do you apportion
liability?” Olszynski asked. But he thinks that the legal fight against
tobacco companies provides a case study for how these types of
challenges can be beaten. “Guys like Steve were like visionaries,” he
argued. “That’s an important story because it talks about the speed to
which the legal system can change.”
As our interview came to a close I asked Berman to describe the best-case scenario for all this. “Imagine if I could get ten or 15 cities to all sue and put the same pressure on the oil companies that we did with tobacco companies and create some kind of massive settlement,” he said. He acted as if it was the first time he’d thought of the idea. But I got the feeling it wasn’t.
*Geoff Dembicki is the author of Are We Screwed? How a New Generation is Fighting to Survive Climate Change.
Links
- Scientists Urge ‘System Change’ to Avoid Catastrophic Climate Change
- How Trump’s Reckless Climate Policy Invites A Judicial Backlash
- World’s First Human Rights Investigation Into Corporate Responsibility For Climate Change Intensifies
- Young People Suing Trump Administration Over Climate Change To Get Day In Court
- Environment: A Legal Milestone
- German Court To Hear Peruvian Farmer's Climate Case Against RWE
- Should A Healthy Environment Be A Human Right? These Norwegians Think So
- Climate Litigation Needs To Become A Mass Movement
- 'We Should Be On The Offensive' – James Hansen Calls For Wave Of Climate Lawsuits
- Climate-Change Lawsuits
- Children Sue Trump Over Climate Change
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