Harassing Energy: The Latest in Climate Litigation (EID’s Allison nails it)

By Robert Bradley Jr. -- August 13, 2020

This post by William Allison, After Multiple Failed Efforts, Climate Litigation Campaign Tries a New Strategy and Branding, part of the Energy In Depth climate and environment project, updates the latest in a failing, pernicious anti-energy strategy. The shame is that the same funders and activists should support mineral energies, not economically inferior and environmentally damaging wind turbines and solar arrays. Mr. Allison’s 1,500-word post follows.

“It’s been a whirlwind few years for supporters of the climate litigation campaign, who have spent untold millions of dollars and don’t have much to show for it. Multiple strategies have been employed with each running into trouble.”

After a bruising defeat in New York state court late last year, supporters of climate litigation have finally ramped back up with new legal strategies and new branding. Key players in the campaign are “getting more creative” according to the latest news reports and continue to have sustained support from powerful allies in government and wealthy donors still hoping to find just one win to boost their cause.

For much of the past decade, it’s a victory that alluded state attorneys general, municipalities, environmental activists, trial lawyers, and pay-for-play “journalists” who have gone all in against oil and gas companies.  At every turn, climate lawsuits have been rejected by the courts, massively revised by the plaintiffs (to still get rejected by the courts); activists and law enforcement officials have been caught colluding, and media coverage was revealed to be bought and paid for.

1. New Cases, But The Same Attorneys General

There have been multiple legal theories behind the climate litigation campaign over the years. “Public nuisance” lawsuits sought to make oil and natural gas companies pay for damages caused by climate change but were rejected on both coasts. Same goes for the “Exxon Knew” narrative and accounting fraud.

The latest attempt has been lawsuits alleging investor and consumer fraud led by the attorneys general in Massachusetts, Minnesota, and Washington D.C. all within the past year.

Massachusetts Attorney General Maura Healey and the Washington D.C. Attorney General were founding members of the “Green 20” that embarked on this campaign with former New York Attorney Eric Schneiderman in 2016. Minnesota was also a founding member of that group, and current Attorney General Keith Ellison introduced his lawsuit last month.

There may be new cases, but the players are still the same.

2. Activists Forget About Their Mounting Losses

While the coordination among attorneys general, activists, and trial lawyers succeeded in launching investigations and filing lawsuits, the inquiries have been anything but wins.

Schneiderman’s group of state attorneys general eventually collapsed after most other participants didn’t bring their own charges against ExxonMobil and his lawsuit devolved from “Exxon Knew” to a charge over metrics accounting for carbon dioxide emissions and allegations of securities fraud. His successor, Attorney General Letitia James, was eventually dealt a resounding defeat after a nearly three-week long trial in late 2019.

Likewise, public nuisance lawsuits brought by San Francisco and Oakland and New York City that sought to make energy companies pay for damages related to climate change were thrown out of federal courts in the summer of 2018 with the judges in those cases ruling that the cities’ claims were displaced by the Clean Air Act. While both cases have since been appealed by the municipalities to their respective appellate courts, it is important to iterate that in every instance that these cases have been considered on their merits – their actual claims that energy companies can and should be held liable for the impacts of climate change – they have been swiftly dismissed.

Writing to the Ninth Circuit Court of Appeals, Judge William Alsup, the district judge who presided over the San Francisco and Oakland case, said the court had misinterpreted his decision to deny the cities’ motion to remand their case back to state court and requested that the 9th Circuit “address the merits of the ground on which removal jurisdiction was actually sustained below.”

The activist group Our Children’s Trust has filed multiple lawsuits in an attempt to force government action on climate change. The most of high profile case – Juliana v. United States – against the U.S. federal government was rejected by a federal appeals court in early 2020, ruling that the executive and legislative branches should address climate change, not the judiciary.

One the state level, the Colorado Supreme Court ruled against Our Children’s Trust in 2019 asserting that the state’s oil and natural gas regulatory body “could not properly adopt the rule proposed” by the group that would block any new drilling permits unless it “does not contribute to climate change.” The group has also seen defeats in Florida, North Carolina, and Washington.

As a result, activists now see a path to trial through arguments over jurisdiction – whether the cases should be heard by state or federal courts, as the Washington Examiner reports.

3. Media, Rebranded

The entire climate litigation campaign got plenty of air cover from so-called “journalism” outfits like InsideClimateNews and the Los Angeles Times, which turned out to be bought and paid for by the Rockefellers to push the “Exxon Knew” narrative and provide support for state attorneys general filing lawsuits.

Another is Climate Liability News, a website set-up in 2017 to promote the campaign by Climate Communications and Law (CCL), which is run by Greenpeace activist Kert Davies and Richard Wiles of the Center for Climate Integrity (CCI) – a project Institute for Governance and Sustainable Development (IGSD). CCL has faced criticism for failing to properly register as a non-profit in its home state of Maryland, which may have helped it circumvent funding disclosures to Climate Liability News.

Like most organizations in the climate litigation campaign, CCI is funded by the Rockefellers, which has received millions from the Rockefeller Family Fund.

Earlier this year, Climate Liability News shut its doors, rebranded as Climate Docket, and merged with the Drilled Podcast and HEATED newsletter – under a combined platform called Drilled News.

Drilled Podcast was started in 2018 by Amy Westervelt, who claims to be a journalist but is merely pushing anti-fossil fuel propaganda and she’s partially funded by ISGD and Wiles is the producer. On a previous podcast, Westervelt exposed her bias:

“Holding the industry accountable for manufacturing climate denial isn’t about finding a bad guy or even strictly about justice, although of course we love a good bad guy … it’s about putting climate denial to rest once and for all and removing key obstacles for action.”

4. Who Was Behind The Minnesota Lawsuit? The Rockefellers.

One of the most recent lawsuits was introduced by Minnesota Attorney General Keith Ellison who sued ExxonMobil, the American Petroleum Institute, and Koch Industries in June. Shortly after, an activist with St. Paul-based Fresh Energy admitted on a public webinar that his group, along with the Center for Climate Integrity, personally approached Ellison and convinced him to file the lawsuit.

Fresh Energy’s Michael Noble said:

“I want to first just acknowledge that [Center for Climate Integrity] is a national organization that leads on this kind of climate liability, climate litigation. And they brought this concept to Fresh Energy in the fall of 2018, and Fresh Energy helped put this idea in front of Attorney General Keith Ellison shortly after he was sworn in.”

Both Fresh Energy and the Center for Climate Integrity have received funds from the Rockefellers, demonstrating their wide influence in the climate litigation campaign. But this episode in Minnesota clearly shows just how far they’ve gone to recruit public officials to carry out their agenda. Never before has the corruption of law enforcement been more on display.

5. New Strategy Emerges

As the climate litigation campaign entered 2020, all these losses had begun to pile up and it was clear that charges of securities fraud and public nuisance were non-starters in court.

It prompted plaintiffs to start “getting more creative,” according to E&E News, while Reuters reports the emergence of “new legal arguments.”

So, Massachusetts Attorney General Maura Healey pursued a different strategy and was the first to make consumer, marketing, and investor charges a key focal point of her lawsuit, including saying that ExxonMobil should have to put climate warning labels on gas pumps.

Similarly, the attorneys general for Minnesota and the District of Columbia, both members of Schneiderman’s Green 20 and signatories to the common interest agreement, announced their own respective lawsuits on back-to-back days in June alleging consumer fraud against several energy companies on the links between their products and climate change.

Not only were these two lawsuits introduced seemingly in tandem, they contain nearly identical language, and each is surrounded by the same supporting cast of characters from previous lawsuits, including the attorneys, activists, and donors.

Yet, despite being a part of the Green 20 with Minnesota and similar language, “Racine told reporters on Thursday that his office only learned of Minnesota’s lawsuit when it was filed yesterday and had been preparing this long before.”

Conclusion

It’s been a whirlwind few years for supporters of the climate litigation campaign, who have spent untold millions of dollars and don’t have much to show for it. Multiple strategies have been employed with each running into trouble.

Massachusetts, Minnesota, and the District of Columbia are simply the latest to take a swing at it with consumer fraud charges, and the activist echo chamber dutifully whirred into action to assure the public that all the cases they had previously championed (and lost) were duds, but these new cases are definitely, somehow, better.