For years American politicians have been complaining and threatening their European counterparts over EU regulations that put restrictions on mostly US-based Internet and social media companies. There were talks of trade wars whenever EU officials penalized US tech giants with fines for non-compliance and illegal operations. When European countries started to consider stricter age and content limits on social media users, the US threats of retaliation became even louder.
But within one week in August, when a group of 42 US State Attorney Generals, supported by several large tort law firms, reached an $18 billion settlement in a lawsuit with Meta, the restrictions on social media use in the US were far greater than any European regulator could ever have dreamt of. The distinction between legislative regulation (lawmaking practiced in most countries) and adversarial regulation (lawmaking by litigious conflict practiced mostly in the US) could not have been better defined.
Regulating as Risk Management
In the traditional sense of the term, regulations are a series of laws proposed and passed through a legislative process, often voted on after a public deliberation by democratic or representative bodies. If leaders are confronted with harms, for example, to young people from freely available and uncontrolled content on the web, they would propose, discuss and pass laws to restrict or control the hazards. This is the basic risk management process – identify harms (risk assessment), determine exposure levels and then manage the exposures to as low as reasonably achievable (ALARA). Measuring exposure levels to harms from social media content has been a challenge for risk managers meaning that most regulations have been far from acceptable or even workable.
Adversarial Regulation
This approach to lawmaking can be messy, time consuming and subject to external factors (like lobbying and special interests). Activists driven to change policy and public behavior have adopted an alternative tool: adversarial regulation. Rather than the democratic risk management approach to legislation, these political campaigners would orchestrate a relentless litigation strategy against a company, industry or product, coordinated with NGO, media and policy campaigns, academic research publications and foundation funding (often the glue to the entire process). If the companies won’t change to fit the activist ideology, and regulators can’t do what they want, then they will litigate the hell out of them until the company either goes bankrupt or relents to the campaign demands.
Adversarial regulation is technically speaking, not a regulatory process. It has its roots in Naomi Oreskes’ tobacconization of industry strategy. Her view, from her 2010 book, Merchants of Doubt, and the strategic La Jolla conference in 2012, is that the tobacco industry did not relent in the 1999 Tobacco Master Settlement Agreement because of regulatory pressure, overwhelming new scientific evidence or a sudden sense of corporate responsibility, but rather due to the fear of bankruptcy from overwhelming, coordinated litigation.
Oreskes’ logic is that this same strategy that worked against Big Tobacco could be implemented against other industries, like the fossil fuel industry. In La Jolla, she brought together lawyers, scientists, NGOs and academics to formulate what is today known as the “tobacconization of industry” strategy. This was refined by academics like Bernard Goldstein into an alternative policy strategy he referred to as adversarial regulation.
Adversarial regulation advocates proliferated as activists grew disenchanted with the slow, unpredictable nature of the regulatory process. Many retired regulatory scientists, like Goldstein or Chris Portier, saw how their overwhelming evidence of health consequences from smoking were ignored due to tobacco industry lobbying. So they began to work with the litigation industry, NGOs and political activists to impose a type of extortion-based litigation. Companies, faced by threats of shareholder revolt, quickly caved and simply encouraged the proliferation of the tobacconization process.
The Meta Evolution
What was interesting with the Meta case, is that it confirmed the La Jolla coordination strategy involving State Attorney Generals, often politically savvy and open to working with external “motivating forces”. (Recall how shortly after La Jolla, the New York AG subpoenaed ExxonMobil for 40 years of internal documents, emails, and financial records that were fed into the “Exxon Knew” campaign.)
Several of the AGs in the Meta suit, from Texas and Arkansas, acknowledged they had subcontracted large tort law firms as external counsel (including controversial Predatorts like the Lanier Law Firm). These firms have their own interests and are gathering thousands of plaintiffs for lawsuits against social media companies so having the support of lawmakers further cements their adversarial regulation strategy (and the standard 11% contingency fees from the multi-billion dollar Meta settlement also helps).
The Firebreak has been observing how State AGs have been getting further in bed with special interest tort law firms, to effectively do their bidding and encourage further litigation avenues. See the case study on the extent to how the climate lawfare firm, Sher Edling, lobbied the Michigan AG to file a lawsuit against the fossil fuel industry, or how the outspoken California AG, Rick Bonta, took a donation from the foreign-funded law firm suing ExxonMobil, to then coordinate a parallel case at the state level against the company’s claims on plastic recycling.
Meta is just the latest chapter in this choreographed strategy to tobacconize industry.
Other Adversarial Achievements
Pesticides
The traditional regulatory process for conventional crop protection products was science-based. Regulatory risk assessments measured exposure levels on crop residues or to applicators, tested levels on rodents to determine toxicity levels (known as LD-50 levels), gathered real-use exposure data and worked to reduce these exposures to as low as reasonably achievable (often by factors of thousands of times lower than any actual hazardous levels).
Activists who felt these levels were not low enough were campaigning to have zero risk (ie, no pesticide use). Unable to change the regulatory process (that also was concerned with providing farmers with the means to produce food), they took the adversarial avenue, targeting companies (like Bayer-Monsanto or Syngenta) and particular pesticides (like glyphosate or paraquat) with relentless lawsuits until the companies either changed their practices or went out of business. So the law may still allow these products onto the market, but no company will dare produce or sell it.
What was interesting from the glyphosate story was how the research community used a network of adversarial regulation advocates aligned with the Collegium Ramazzini to manufacture evidence of carcinogenicity via the manipulated and flawed methodology of the International Agency for Research on Cancer (IARC). The IARC monograph claiming that glyphosate probably causes cancer, to this day, is the only evidence from any agency that has been used in lawsuits against Bayer. The law firms paid for that evidence. The IARC-Ramazzini-Predatort strategy has also been used, with lower success rates, for the adversarial regulation strategy against talc, aspartame, gasoline and atrazine. The practice has become so common and so corrupted that the US government had to restrict the use of evidence coming from IARC.
Plastics
The regulatory process would consider scientific evidence on environmental-health risks from plastics, as in cases of microplastics, plastic waste management or food migration issues. In these cases, government risk assessors have determined the evidence presented by researchers tied to anti-plastics campaigns to be insignificant or based on poor methodology. See, for example, The Firebreak report on the EFSA rejection of most microplastics studies. Claims to regulate plastics as a fossil fuel ignores the data showing how plastics are more sustainable than alternatives in 15 of the 16 applications.
As activists do not want plastics (for emotional and political reasons), but they don’t have the scientific evidence, so to succeed on the regulatory front, they have to take the adversarial approach. See reports in The Firebreak on lawsuits against ExxonMobil funded by the Minderoo Foundation, a foreign steel special interest lobby, the copper industry’s campaign against plastic, and how foundations are funding strategic litigation NGOs like Earthjustice to file lawsuits not based on science but on politics.
Climate Change
A normal regulatory process would look at the evidence of climate change, the sources, the effects of mitigation on society (including economic damages from accelerated mitigation measures) and determine the best strategy, if any, for adaptation, transition and investment in alternatives. Some governments have increased fossil fuel taxes to encourage alternatives while investing in public transport, home improvement subsidies and flood/fire preventions, knowing that, in a democratic system, they are accountable to the will of the public (making any transition gradual and opportunistic).
As the planet does not get a vote, climate campaign activists are not democratic. Their goal of forcing the energy/food/economic transition as fast as possible, regardless of the harsh impact on the economy, consumers and public well-being, has only left them with the adversarial regulation alternative. Following the La Jolla tobacconization strategy, there have been a multitude of lawsuits at state and local levels against fossil fuel companies for damages from the effects of climate change.
As attribution of climate change (caused potentially by atmospheric movements of a wide range of greenhouse gases and CO2 and methane sources) upon a single oil company in a particular judicial county is next to impossible, most of the climate lawfare cases have been funded by professionalized activists managing funds in large philanthropic foundations. Pumping hundreds of millions of dollars into this sure-loss strategy, the foundations hope to overwhelm the fossil fuel industry and drive away their investors.
The Firebreak has shown how foundations are quietly underwriting the legal costs of tort firms like Sher Edling, strategic litigation NGOs like Earthjustice or EarthRights International and heavily involved in regranting fiscal sponsors to fund NGO strategic litigation campaigns. One particular case, Suncor v Boulder County, is coming before the Supreme Court next month. The lawsuit is coordinated and led by the foundation-funded NGO, EarthRights International, whose ambition is to use the outcome as a carbon tax to be imposed on the American public and eventually wipe out the fossil fuel industry. In the build-up to the deliberations, the La Jolla coordination strategy is evident: scientists rushing reports to publication to support the case, the media dusting off climate fear stories to amplify public interest, and foundation-funded NGOs, law firms and academics contributing amicus briefs for the case.
An Undemocratic Process
Adversarial regulation is more common in the US, where people tend to have their lawyers on speed dial to manage their daily litigious needs. There are many factors behind this, including: the weak, reactive regulatory structure that gives more reign to free market forces, the common law approach, the variations in political interests at the state level as well as a distrusting civil religion that eschews government intervention in a wide range of public activities.
Under such a system, when change happens, it happens very quickly and without public consultation or consideration of all interests. The Meta case was settled within a week, with sanctions on the social media company’s model that was not subjected to open dialogue or considerations of alternative policy measures. European lawmakers were beginning the regulatory process, assessing the risks and considering the viable options to protect society while enabling benefits. In the US, a group of self-interested tort lawyers quickly pushed through a settlement on the basis of a large payout and some operational restrictions as add-ons to justify the process. As with most adversarial victories, the decisions post-lawsuit are often more severe than traditional regulatory conclusions, and more beholden to interest groups.
I have strong reservations about the legitimacy of the adversarial regulatory approach. It is not democratic, not open to all interested parties and is fueled by financial opportunism. It puts too much power in the hands of tort lawyers whose theatrics and caseloads tend to be motivated by greed more than the public good. Often the US government only comes in after the damage has largely been done (when farmers lose important crop protection products, dark foundation funding tools interfere with economic development…) and only if it conflicts with the ideologies of the political party in power.
Adversarial regulation is lawmaking based on vengeance, opportunism and greed rather than science, evidence and risk management.