ANNAPOLIS, Md. (Legal Newsline) - Climate activists funded by old money have been championing contingency fee lawyers who are piling up litigation to chase a tobacco-like settlement against the energy industry.
Such a settlement would likely be larger than the $206 billion payout negotiated with tobacco in 1998, the largest in history. Trial lawyers would collect billions in fees, and the government entities engaging the lawyers would enjoy new revenue streams, without the political backlash that comes from raising taxes. This, even though no legal foundation exists for the claims, defense lawyers say.
The city of Annapolis recently joined 24 other local and state governments that have engaged outside, contingency fee lawyers in filing climate litigation against 26 oil and gas companies including ExxonMobil, Chevron, BP and Shell. Annapolis has retained Sher Edling LLP on a sliding fee scale that ranges from 16% to 25% based on how much the city recovers.
Sher Edling is representing other governments in climate suits as well, which likewise allege that the energy companies are responsible for damage caused by climate change.
Annapolis officials were approached and encouraged to bring the lawsuit by the Chesapeake Climate Action Network (CCAN), an activist group founded in 2002 with funding from the Rockefeller Brothers Foundation (RBF). CCAN has also approached Maryland’s Anne Arundel County about filing a climate suit.
A review of public records shows RBF has given the organization more than $600,000 since its founding in 2002. Another source of Rockefeller money, the Rockefeller Family Fund, has donated more than $3 million to the Institute for Governance and Sustainable Development, which is behind another climate group, the Center for Climate Integrity.
The first round of lawsuits against the energy companies was derailed in 2011 when the U.S. Supreme Court ruled 8-0 in American Electric Power Co (AEP). v. Connecticut that corporations cannot be sued under federal public nuisance laws since responsibility for regulating air emissions lies with the Environmental Protection Agency.
The lawyers are now placing their hopes in state courts and on state public nuisance and consumer protection laws – unsound law but good PR, according to a legal expert.
“The lawyers here have purposefully invoked public nuisance and consumer protection laws because these causes of action support their public relations campaign against the oil and gas industry, even though they cannot satisfy the traditional legal requirements of either cause of action,” Phil Goldberg, co-chair of Shook, Hardy & Bacon’s Public Policy Practice Group, and special counsel for the Manufacturers’ Accountability Project, told Legal Newsline.
“The federal courts have been clear that, even if you believe the plaintiffs’ incendiary allegations, selling the energy we need to turn on our lights, drive our cars and power our factories, is simply not a liability inducing event. There is no legal basis for these claims. The plaintiffs’ lawyers whole state-law strategy here is to try to avoid the federal courts and find a state judge willing to stretch the elements of these actions far enough to allow the cases to move forward.”
A 2019 article published by Energy In Depth says the #ExxonKnew campaign dates to a 2012 meeting held in La Jolla, California. It was hosted by the Union of Concerned Scientists and Climate Accountability Institute, two groups who receive funding by the Rockefeller Brothers Fund.
The purpose of the meeting, Energy In Depth says, was to compare energy companies with Big Tobacco and to apply legal and public relations strategies used against tobacco companies in the 1990s.
Procedural aspects of a Baltimore climate change case argued before the U.S. Supreme Court in January could decide the jurisdictional fate, and so the ultimate outcome, of these lawsuits.