SEATTLE (Legal Newsline) – The law firm pushing cities and counties to sue fossil fuel companies over climate change has apparently offered a discount to snag a client in its own backyard.
Hagens Berman is representing King County, Wash., in the latest case that accuses major energy companies of creating a “public nuisance” by causing climate change-related changes to the environment like rising sea levels. The firm calls its Seattle office, which is managed by co-founder Steve Berman, its "flagship" of 11 locations around the country.
The firm is already busy with litigation on behalf of California counties and cities, including Oakland and San Francisco. It will keep 23.5% of any recovery in those cases, which have drawn criticism from some because they seek to penalize companies that were compliant with government-created emissions standards.
The firm’s agreement with King County, though, stipulates only a 17% contingency fee. King County Executive Dow Constantine's office did not respond to a question asking whether that was the firm's first offer or if the county negotiated it down.
“The consequences of global warming from past fossil fuel usage is an irreversible condition on any relevant time scale: it will last hundreds or even thousands of years,” says the King County complaint, filed May 8.
“Defendants’ planned production of fossil fuels into the future will exacerbate global warming and require greater and more costly abatement actions to protect King County.”
A group defending the industry says Hagens Berman is using the civil court system to advance its own interests.
“Lawsuits targeting manufacturers do nothing to address climate change, but will do plenty to line the pockets of plaintiffs’ attorneys – and in this case, the very same attorneys behind other public nuisance lawsuits throughout the country,” said Lindsey de la Torre, executive director of the Manufacturers’ Accountability Project.
“As history has demonstrated, these lawsuits stand little chance in the courtroom.”
King County marks the fourth distinct area of the country to file such a case. A group of California cities and counties was first, followed by New York City and three Colorado governments – the city and county of Boulder and San Miguel County.
Most of the resistance from the defendants – which include Exxon, Chevron and British Petroleum – has occurred in the California cases. The defendants recently filed a motion to dismiss after plaintiffs were told to amend their lawsuits.
Exxon, meanwhile, is seeking to depose officials who filed the cases to ask why, if the alleged climate change catastrophes are imminent, they haven’t disclosed that danger to investors in recent bond offerings.
Exxon filed its strategy in a Texas state court, where a judge has signed off on findings of fact that document the role Matt Pawa, an attorney at Hagens Berman, had in pushing a strategy unveiled in 2012 at a conference in California. Exxon also wants to depose Pawa.
“During the conference, participants discussed strategies to ‘[w]in [a]cess to [i]nternal [d]ocuments’ of energy companies, like ExxonMobil, that could be used to obtain leverage over these companies,” the judge’s findings say.
“The conference participants concluded that using law enforcement powers and civil litigation to ‘maintain[] pressure on the industry that could eventually lead to its support for legislative and regulatory responses to global warming.’ One commentator observed, ‘Even if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties.’"
It’s not clear if Exxon will fight Boulder’s lawsuit the same way. The city would not answer whether it has ever disclosed climate change risks in any bond offering.
Exxon is one of only two defendants in that case, in which nonprofits the Niskanen Center and EarthRights International are working pro bono.
But, a Denver personal injury/environmental lawyer is working on a 20% contingency fee. That lawyer is Kevin Hannon of the Hannon Law Firm.
Colorado’s own state attorney general has come out against the lawsuits in an amicus brief joined by 14 colleagues. AGs supporting the lawsuits number only three in another amicus brief in the Oakland and San Francisco cases.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.