Trial Lawyers Stack Steady Losses In Climate Lawfare Cases

Compromising with green tyrants doesn’t work. Beating them in court does.

For a decade now, a brigade of climate zealots, flanked by their legal consiglieres, has been waging a shadow war against the fossil fuel industry. Rather than muster the votes for an outright ban on oil and gas—a quixotic endeavor, given the public's stubborn attachment to affordable energy—they've opted for a more serpentine approach. They've enlisted state and local governments as their cat's-paws, filing lawsuit after lawsuit to extract "climate damages" from energy companies, alleging complicity in the grand melodrama of global warming.

The playbook is as cynical as it is transparent: bury the industry in a quagmire of litigation, bleed it dry with legal fees, and force it into penury via settlements that could fund small nations. All the while, paint them as the mustache-twirling villains of a planetary apocalypse.

There's just one fly in the ointment: the courts, with a refreshing lack of patience for such nonsense, have been chucking these climate nuisance suits into the judicial dumpster, recognizing the plaintiffs' arguments for the flimsy fictions they are.

Here's the takeaway, and it's one every industry should tattoo on its corporate soul: When ideological fanatics accuse you of torching the Earth, you don't sit down for tea. You crush them in court, repeatedly and mercilessly, until they slink off, tails between their legs. Then you keep at it, because that's how you exorcise the specter of unhinged environmentalism from the body politic.

“Too strange to seriously contemplate”

So far six courts have repudiated the plaintiffs’ complaint against the energy sector entirely or in part, the most recent decision coming from a state judge in New Jersey. The reasoning behind these decisions is both sound and simple. First, states can’t use evidence of global warming to blame multinational companies for regional environmental impacts. It would be akin to blaming heart attacks in Billings, Montana, on international Big Mac sales. Pure absurdity.

Second, the US Supreme Court has ruled that the Clean Air Act (CAA) grants the EPA sole authority to regulate greenhouse emissions. States and smaller jurisdictions have no justification to punish energy companies for…selling energy, which is legal in every country in the world. Even on its own terms the litigation is clownish since the defendant-companies are responsible for only 15 percent of global greenhouse emissions.

The plaintiffs have tried to tap dance around these awkward facts by arguing that they aren’t trying to regulate emissions; they just want oil companies to pay for deceiving the public about the environmental impact of their products. But the courts aren’t buying it. A superior court in New York presiding over the city’s case against Chevron didn’t mince words: the plaintiff’s argument is “too strange to seriously contemplate.” The court added that:

“Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions. It is precisely because fossil fuels emit greenhouse gases – which collectively exacerbate global warming – that the City is seeking damages. Put differently, the City’s complaint whipsaws between disavowing any intent to address emissions and identifying such emissions as the singular source of the City’s harm.

But the City cannot have it both ways. Stripped to its essence, then, the question before us is whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no

Three climate nuisance cases in Maryland have met a similar fate, and for the exact same reason: none of the plaintiffs (two cities, a county and the state itself) can file suit in state court to address a phenomenon they recognize as global. In one case, the judge actually reversed his previous decision allowing the suit to move forward, citing similar rulings in New York and Delaware.

“Exxon Knew,” debunked

Delaware Superior Court Judge Mary Johnston added an especially helpful observation in her ruling, namely that the state failed to specify how each oil company harmed its customers by “greenwashing” its products. Activist historian Naomi Oreskes–mastermind behind the legal strategy driving the climate nuisance crusade–has made a career out of asserting that oil companies knew about anthropogenic climate change but deliberately denied its existence to protect their profits.

The problem for Oreskes and her pet lawyers is that their complaints are based on the assumption that the effects of climate change have been “open and obvious” for decades (p 51). In other words, they can’t accuse the industry of successfully denying a problem that everyone apparently knows is a problem. The judge elaborated:

“Defendants [the oil companies] have provided evidence showing that the general public had knowledge of or had access to information about the disputes, regarding the existence of climate change and effects … This information and evidence is unrefuted by the State [emphasis ours].”

More to the point, Oreskes claims that “Exxon oil company has known since the late 1970s that its fossil fuel products could lead to global warming,” based on internal industry documents she examined. But the documents themselves don’t support her conspiracy theory. For instance, here’s a 1980 American Petroleum Institute memo in which the oil industry grappled with just how difficult it is to forecast future warming:

We now know from very recent research that the industry was correct about the imprecision of climate modeling. Mainstream climate science dramatically overestimated the amount of CO2 we currently emit into the atmosphere, and some experts have pointed out that their colleagues are deliberately making the same mistake with future emissions projections. If we emit decreasing amounts of carbon, earth’s climate is not going to experience runaway warming. The basis of these lawsuits is eroding in real time, a reality reflected in the dismissals.

A tale of two PR strategies

Over the last several decades, many firms and industries have responded to spurious attacks from the environmental movement with public acts of contrition: they slap “organic” labels on their products; they make sustainability pledges and attack other companies that don’t; in some cases, they even give money to the NGOs that assault them.

These moves were designed to buy good will, but they’ve only encouraged the activists to demand even more concessions from industry—to the point of pushing major companies into bankruptcy. This clearly isn’t working.

What is working–as these court victories confirm–is industry defending itself against rabid NGOs. There are other striking examples as well. “Fossil-fuel billionaire Kelcy Warren is about to land a knockout punch on Greenpeace,” the Wall Street Journal reported last fall. “The pipeline magnate’s company … is behind a lawsuit that Greenpeace says could bankrupt the environmental group’s U.S. affiliate.”

The infamous NGO held (sometimes violent) protests to block one of Kelsey’s pipeline projects in North Dakota. He responded by suing them for destruction of property and lying about his company. Commenting on his motivations for going on the offensive, Kelsey helpfully summed up our plea to industry:

“Everybody is afraid of these environmental groups and the fear that it may look wrong if you fight back with these people. But what they did to us is wrong, and they’re gonna pay for it.”