Los Angeles Times - Michael Hiltzik
 |
| The Deepwater Horizon oil rig, aflame in the Gulf of Mexico in 2010. The
rig's owner, BP, is one of more than 20 oil companies being sued over
their alleged role in climate change. (Gerald Herbert / AP) |
The
oil industry has been depicting itself lately as the target of a
conspiracy by scientists, local government officials and climate change
activists to make it look bad.
It
would be odd to think that a conspiracy is necessary to punch holes in
the fossil fuel companies’ public reputation, but here’s the argument
presented by the Independent Petroleum Assn. of America, one of the
industry’s leading lobby organizations.
“In a highly-coordinated move,” the
IPAA declares on its website,
“nearly 30 scientists, government officials and third-party
organizations recently joined the fledgling climate litigation
campaign.” The IPAA labeled this a “free-for-all” and quoted an industry
newsletter calling the campaign “a carefully orchestrated effort by
local governments in California and elsewhere to use state law to
collect damages from companies producing and marketing fossil fuels.”
False and deceptive marketing, ... campaigns to deceive the public — those are traditional state police power matters.
Victor Sher, plaintiff's attorney in climate change lawsuits
If you think this sounds like a Goliath pretending to be a David, you are right. The litigation campaign IPAA refers to is
a cluster of lawsuits
pioneered in 2017 by the California counties of San Mateo, Imperial
Beach, Marin and Santa Cruz, and the cities of Richmond, Oakland and San
Francisco, among other jurisdictions, against more than 20 oil and gas
companies.
The
plaintiffs assert that the companies freely promoted the use of their
products even though they were aware of the products’ effect on global
warming — information the industry allegedly suppressed for years. The
municipalities are asking that the companies be forced to help pay for
the damage wreaked by climate change, including drought, wildfires, sea
level rise and extremes of heat and precipitation. Since the filing of
the California cases, similar lawsuits have been filed by Rhode Island,
Washington’s King County (that is, Seattle), Baltimore and New York
City.
The
oil companies succeeded in transferring the state lawsuits to federal
court, where they expect to face less liability under the law. The
plaintiffs’ argument that the cases belong back in state court is being
heard by the U.S. 9th Circuit Court of Appeals in San Francisco.
What has the industry vibrating at the moment is a sheaf of
eight friend-of-the-court,
or amicus, briefs all filed on Jan. 29 with the appellate court
supporting the transfer back to state court. Among other parties, the
briefs were filed by the California Assn. of Counties, the Natural
Resources Defense Council, a group of six prominent oil company critics,
and the National League of Cities.
To
the industry, this looks like a cabal. In a blog post, the IPAA found
something sinister in “the fact that all eight of the briefs were filed
within hours of one another on a random January afternoon (i.e. there
wasn’t a court-designated deadline).” Not only was that “reason enough
to suspect some level of coordination took place,” the blog post
observes, but “signing onto the amicus briefs were many of the activists
and politicians who have played key roles in the broader campaign to
take down the oil and natural gas industry for years.”
A
couple of points are pertinent here. First of all, there was indeed a
court-designated deadline for filing the briefs — Jan. 29, the day they
were filed. The
court’s procedural calendar
specifies that amicus briefs must be filed no later than seven days
after the main brief of the party they’re supporting. The California
plaintiffs filed their brief on Jan. 22, seven days earlier. So much for
the “coordination.”
Second,
why should it be so odd that the supporters of the cities and counties
are drawn from the community of fossil fuel critics? Who else?
Let’s
examine some of the industry’s other points. Among the chief targets of
its pushback are Naomi Oreskes and Geoffrey Supran of the Department of
the History of Science at Harvard University, who filed one of the
amicus briefs in conjunction with four other scholars with interest in
climate change science.
Oreskes and Supran were the authors of
a 2017 study
detailing the industry’s determined, decades-long effort to suppress
scientific evidence of global warming caused by the burning of fossil
fuels, despite warnings by its own scientific researchers that the
phenomenon was genuine, dangerous and accelerating.
We reported here on their study,
which focused on Exxon Mobil. They compared hundreds of Exxon Mobil's
internal reports and peer-reviewed research papers with its advertising —
especially paid "advertorials" the company placed in the op-ed section
of the New York Times from 1972 through 2001. The authors concluded that
Exxon Mobil had systematically "misled non-scientific audiences about
climate science."
The IPAA blog post claims that the Oreskes-Supran study has been debunked, but that’s not so. Their
statistical method was questioned
by another researcher, who was paid by Exxon Mobil. But the core of
their findings wasn’t statistical but empirical. They compared internal
company documents with the ad campaign, and found them wildly divergent.
Oreskes,
in an email, labeled the so-called debunking “the sort of
expert-for-hire doubt-mongering” engaged in by the tobacco industry when
it was fighting medical science over the dangers of smoking. That’s a
topic she’s familiar with, having covered it in the 2010 book
“Merchants of Doubt,” co-written with Erik M. Conway.
It’s
hardly surprising that the oil industry would be uneasy about the
“fledgling climate litigation campaign.” The plaintiffs aim to use state
laws to fix blame on the fossil fuel companies in ways that can’t be
accomplished under federal environmental laws such as the Clean Air Act.
Indeed,
federal law vests the states with primary responsibility for addressing
air pollution, according to Victor Sher, the San Francisco attorney
representing the counties and cities. “Cases involving false and
deceptive marketing, overpromotion of products, campaigns to deceive the
public — those are traditional state police power matters that the
Clean Air Act doesn’t address at all.”
Federal Judge Vince Chhabria of San Francisco largely agreed last March, when he
ordered the lawsuits returned to state court. The oil companies appealed his order, which is why it’s now before the 9th Circuit bench.
The
municipalities also are hoping to take advantage of California’s
“public nuisance” doctrine, which holds that business can be held
responsible for damage done by its products even if their usage was
standard practice at the time.
The
public nuisance argument was central to a lawsuit brought by California
municipalities against lead paint manufacturers that concluded in 2017
with
an order that the companies pay to clean up residual lead in dwellings that could pose a health hazard to children in those homes.
There’s
no question that the cities and counties face a long and arduous road
to saddling the oil industry with the responsibility for climate change
and the expense of addressing its impacts. The lead paint lawsuit lasted
17 years before the verdict was made final.
But
there’s also no question that the industry did its best to hide what it
knew about the prospects of global warming and its products’ role in
it. The latest misleading attack on its critics shows, if nothing else,
that it still hasn’t learned to tell the truth, the whole truth and
nothing but the truth.
Links
