Big oil and gas kept a dirty secret for decades.
Now they may pay the price
Communities are now demanding the oil conglomerates
pay damages and take urgent action to reduce further harm from burning fossil
fuels.
Via an unprecedented wave of lawsuits, America’s
petroleum giants face a reckoning for the devastation caused by fossil fuels
Chris
McGreal
Wed 30 Jun
2021 08.00 BST
https://www.theguardian.com/environment/2021/jun/30/climate-crimes-oil-and-gas-environment
After a
century of wielding extraordinary economic and political power, America’s
petroleum giants face a reckoning for driving the greatest existential threat
of our lifetimes.
An
unprecedented wave of lawsuits, filed by cities and states across the US, aim
to hold the oil and gas industry to account for the environmental devastation
caused by fossil fuels – and covering up what they knew along the way.
Coastal
cities struggling to keep rising sea levels at bay, midwestern states watching
“mega-rains” destroy crops and homes, and fishing communities losing catches to
warming waters, are now demanding the oil conglomerates pay damages and take
urgent action to reduce further harm from burning fossil fuels.
But, even
more strikingly, the nearly two dozen lawsuits are underpinned by accusations
that the industry severely aggravated the environmental crisis with a
decades-long campaign of lies and deceit to suppress warnings from their own
scientists about the impact of fossil fuels on the climate and dupe the
American public.
The
environmentalist Bill McKibben once characterized the fossil fuel industry’s
behavior as “the most consequential cover-up in US history”. And now for the
first time in decades, the lawsuits chart a path toward public accountability
that climate activists say has the potential to rival big tobacco’s downfall
after it concealed the real dangers of smoking.
“We are at
an inflection point,” said Daniel Farber, a law professor at the University of
California, Berkeley and director of the Center for Law, Energy, and the
Environment.
“Things
have to get worse for the oil companies,” he added. “Even if they’ve got a
pretty good chance of winning the litigation in places, the discovery of pretty
clear-cut wrong doing – that they knew their product was bad and they were
lying to the public – really weakens the industry’s ability to resist
legislation and settlements.”
For
decades, the country’s leading oil and gas companies have understood the
science of climate change and the dangers posed by fossil fuels. Year after
year, top executives heard it from their own scientists whose warnings were
explicit and often dire.
In 1979, an
Exxon study said that burning fossil fuels “will cause dramatic environmental
effects” in the coming decades.
“The
potential problem is great and urgent,” it concluded.
But instead
of heeding the evidence of the research they were funding, major oil firms
worked together to bury the findings and manufacture a counter narrative to
undermine the growing scientific consensus around climate science. The fossil
fuel industry’s campaign to create uncertainty paid off for decades by muddying
public understanding of the growing dangers from global heating and stalling
political action.
The urgency
of the crisis is not in doubt. A draft United Nations report, leaked last week,
warns that the consequences of the climate crisis, including rising seas,
intense heat and ecosystem collapse, will fundamentally reshape life on Earth
in the coming decades even if fossil fuel emissions are curbed.
To
investigate the lengths of the oil and gas industry’s deceptions – and the
disastrous consequences for communities across the country – the Guardian is
launching a year-long series tracking the unprecedented efforts to hold the
fossil fuel industry to account.
The legal
process is expected to take years. Cities in California filed the first
lawsuits back in 2017, and they have been tied down by disputes over
jurisdiction, with the oil companies fighting with limited success to get them
moved from state to federal courts where they think the law is more favorable.
But climate
activists see opportunities long before verdicts are rendered in the US. The
legal process is expected to add to already damning revelations of the energy
giants’ closely-held secrets. If history is a guide, those developments could
in turn alter public opinion in favor of regulations that the oil and gas
companies spent years fighting off.
A string of
other recent victories for climate activists already points to a shift in the
industry’s power.
Last month,
a Dutch court ordered Shell to cut its global carbon emissions by 45% by the
end of the decade. The same day, in Houston, an activist hedge fund forced
three new directors onto the board of the US’s largest oil firm, ExxonMobil, to
address climate issues. Investors at Chevron also voted to cut emissions from
the petroleum products it sells.
Earlier
this month, developers of the Keystone XL pipeline cancelled the project after
more than a decade of unrelenting opposition over environmental concerns. And
although a federal court last year threw out a lawsuit brought by 21 young
Americans who say the US government violated their constitutional rights by
exacerbating climate change, the Biden administration recently agreed to
settlement talks in a symbolic gesture aimed to appease younger voters.
For all
that, American lawyers say the legal reasoning behind foreign court judgements
are unlikely to carry much sway in the US and domestic law is largely untested.
In 2018, a federal court knocked back New York City’s initial attempt to force
Big Oil to cover the costs of the climate crisis by saying that its global
nature requires a political, not legal, remedy.
Other
regional lawsuits are inching their way through the courts. From Charleston,
South Carolina, to Boulder, Colorado, and Maui, Hawaii, communities are seeking
to force the industry to use its huge profits to pay for the damage and to oblige
energy companies to treat the climate crisis for what it is – a global
emergency.
Municipalities
such as Imperial Beach, California – the poorest city in San Diego county with
a budget less than Exxon chief executive’s annual pay – faces rising waters on
three sides without the necessary funding to build protective barriers. They
claim oil companies created a “public nuisance” by fuelling the climate crisis.
They seek to recover the cost of repairing the damage and constructing
defences.
The public
nuisance claim, also pursued by Honolulu, San Francisco, and Rhode Island,
follows a legal strategy with a record of success in other types of litigation.
In 2019, Oklahoma’s attorney general won compensation of nearly half a billion
dollars against the pharmaceutical giant Johnson & Johnson over its false
marketing of powerful prescription painkillers on the grounds it created a
public nuisance by contributing to the opioid epidemic in the state.
Other
climate lawsuits, including one filed in Minnesota, allege the oil firms’
campaigns of deception and denial about the climate crisis amount to fraud.
Minnesota is suing Exxon, Koch Industries, and an industry trade group for
breaches of state law for deceptive trade practices, false advertising, and
consumer fraud over what the lawsuit characterises as distortions and lies
about climate science.
The
midwestern state, which has seen temperatures rise faster than the US and
global averages, said scorching temperatures and “mega-rains” have devastated
farming and flooded people out of their homes, with low income and minority
families most at risk.
Minnesota’s
attorney general, Keith Ellison, claims in his lawsuit that for years Exxon
orchestrated a campaign to bury the evidence of environmental damage caused by
burning fossil fuels “with disturbing success”.
“Defendants
spent millions on advertising and public relations because they understood that
an accurate understanding of climate change would affect their ability to
continue to earn profits by conducting business as usual,” Ellison said in his
lawsuit.
Farber said
cases rooted in claims that the petroleum industry lied have the most promising
chance of success.
“To the
extent the plaintiffs can point to misconduct, like telling everybody there’s
no such thing as climate change when your scientists have told you the
opposite, that might give the courts a greater feeling of comfort that they’re
not trying to take over the US energy system,” he said.
Almost all
the lawsuits draw on the oil industry’s own records as the foundation for
claims that it covered up the growing threat to life caused by its products.
Shell, like
other oil companies, had decades to prepare for those consequences after it was
forewarned by its own research. In 1958, one of its executives, Charles Jones,
presented a paper to the industry’s trade group, the American Petroleum
Institute (API), warning about increased carbon emissions from car exhaust.
Other research followed through the 1960s, leading a White House advisory
committee to express concern at “measurable and perhaps marked changes in
climate” by the year 2000.
API’s own
reports flagged up “significant temperature changes” by the end of the twentieth
century.
The largest
oil company in the US, Exxon, was hearing the same from its researchers.
Year after
year, Exxon scientists recorded the evidence about the dangers of burning
fossil fuels. In 1978, its science advisor, James Black, warned that there was
a “window of five to ten years before the need for hard decisions regarding
changes in energy strategy might become critical”.
Exxon set
up equipment on a supertanker, the Esso Atlantic, to monitor carbon dioxide in
seawater and the air. In 1982, the company’s scientists drew up a graph
accurately plotting an increase in the globe’s temperature to date.
“The 1980s
revealed an established consensus among scientists,” the Minnesota lawsuit
against Exxon says. “A 1982 internal Exxon document … explicitly declares that
the science was ‘unanimous’ and that climate change would ‘bring about
significant changes in the earth’s climate’.”
Then the
monitoring on the Esso Atlantic was suddenly called off and other research
downgraded.
What
followed was what Naomi Oreskes, co-author of the report America Misled, called
a “systematic, organised campaign by Exxon and other oil companies to sow doubt
about the science and prevent meaningful action”.
The report
accused the energy companies of not only polluting the air but also “the
information landscape” by replicating the cigarette makers’ playbook of cherry
picking data, using fake experts, and promoting conspiracy theories to attack a
growing scientific consensus.
Many of the
lawsuits draw on a raft of Exxon documents held at the University of Texas, and
uncovered by the Columbia Journalism School and the Los Angeles Times in 2015.
Among them
is a 1988 Exxon memo laying out a strategy to push for a “balanced scientific
approach,” which meant giving equal weight to hard evidence and climate change
denialism. That move bore fruit in parts of the media into the 2000s as the oil
industry repositioned global heating as theory, not fact, contributing to the
most deep-rooted climate denialism in any developed country.
The company
placed advertisements in major American newspapers to sow doubt. One in the New
York Times in 2000, under the headline “Unsettled Science”, compared climate
data to changing weather forecasts. It claimed scientists were divided, when an
overwhelming consensus already backed the evidence of a growing climate crisis,
and said that the supposed doubts meant it was too soon to act.
Exxon’s
chairman and chief executive, Lee Raymond, told industry executives in 1996
that “scientific evidence remains inconclusive as to whether human activities
affect global climate”.
“It’s a
long and dangerous leap to conclude that we should, therefore, cut fossil fuel
use,” he said.
Documents
show that his company’s scientists were telling Exxon’s management that the
real danger lay in the failure to do exactly that.
In 2019,
Martin Hoffert, a professor of physics at New York University, told a
congressional hearing that as a consultant to Exxon on climate modelling in the
1980s, he worked on eight scientific papers for the company that showed fossil
fuel burning was “increasingly having a perceptible influence on Earth’s
climate”.
Hoffert
said he “hoped that the work would help to persuade Exxon to invest in
developing energy solutions the world needed”. That was not the result.
“Exxon was
publicly promoting views that its own scientists knew were wrong, and we knew
that because we were the major group working on this. This was immoral and has
greatly set back efforts to address climate change,” said Hoffert.
“They
deliberately created doubt when internal research confirmed how serious a
threat it was. As a result, in my opinion, homes and livelihoods will likely be
destroyed and lives lost.”
Exxon
worked alongside Chevron, Shell, BP, and smaller oil firms to shift attention
away from the growing climate crisis. They funded the industry’s trade body,
API, as it drew up a multimillion dollar plan to ensure that “climate change
becomes a non- issue” through disinformation. The plan said “victory will be
achieved” when “recognition of uncertainties become part of the ‘conventional
wisdom’.”
The fossil
fuel industry also used its considerable resources to pour billions of dollars
into political lobbying to block unfavourable laws and to fund front
organisations with neutral and scientific sounding names, such as the Global
Climate Coalition (GCC). In 2001, the US state department told the GCC that
President George W. Bush rejected the Kyoto protocol to reduce greenhouse gas
emissions “in part, based on input from you”.
Exxon alone
has funded more than 40 groups to deny climate science, including the George C.
Marshall Institute, which one lawsuit claims orchestrated a “sham petition”
denying man-made global climate change. It was later denounced by the National
Academy of Science as “a deliberate attempt to mislead scientists”.
To Sharon
Eubanks the conspiracy to deny science sounded very familiar. From 2000, she
led the US justice department’s legal team against nine tobacco firms in one of
the largest civil cases filed under the Racketeer Influenced and Corrupt
Organizations (Rico) act, which was designed to combat organised crime.
In 2006, a
federal judge found that the industry had spent decades committing a huge fraud
on the American public by lying about the dangers of smoking and pushing
cigarettes to young people.
Eubanks
said that when she looked at the fossil fuel industry’s strategy, she
immediately recognised big tobacco’s playbook.
“Big Oil
was engaged in exactly the same type of behaviour that the tobacco companies
engaged in and were found liable for fraud on a massive scale,” said Eubanks.
“The cover up, the denial of the problem, the funding of scientists to question
the science. The same pattern. And some of the same lawyers represent both
tobacco and big oil.”
The danger
for the fossil fuel industry is that the parallels do not end there.
The legal
process is likely to oblige the oil conglomerates to turn over years of
internal communications revealing what they knew about climate change, when and
how they responded. Given what has already come out from Exxon, they are
unlikely to help the industry’s case.
Eubanks,
who is now advising attorneys general and others suing the oil industry, said a
turning point in her action against big tobacco came with the discovery of
internal company memos in a state case in Minnesota. They included language
that talked about recruiting young people as “replacement smokers” for those
who died from cigarettes.
“I think
the public was particularly stunned by some of the content of the documents and
the talk about the need for bigger bags to take home all the money they were
going to make from getting people to smoke,” said Eubanks.
The
exposure of the tobacco companies internal communications shifted the public
mood and the politics, helping to open the door to legislation to curb smoking
that the industry had been successfully resisting for decades.
Farber, the
Berkeley law professor, said the discovery process carries a similar danger for
the oil companies because it is likely to expose yet more evidence that they
set out to deceive. He said that will undercut any attempt by the energy giants
to claim in court that they were ignorant of the damage they were causing.
Farber said
it will also be difficult for the oil industry to resist the weight of US
lawsuits, shareholder activism, and shifting public and political opinion. “It
might push them towards settlement or supporting legislation that releases some
from liability in return for some major concessions such as a large tax to
finance responses to climate change.”
The
alternative, said Farber, is to take their chance on judges and juries who may
be increasingly inclined to take the climate crisis seriously.
“They may
think this is an emergency that requires a response. That the oil companies
should be held responsible for the harm they’ve caused and that could be very
expensive,” he said. “If they lose, it’s catastrophic ultimately.”
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