OLYMPIA, Wash. (Legal Newsline) - An op-ed recently written by a Democratic lawmaker in Washington State is raising questions about the state's possible plans to file a major lawsuit targeting Big Oil.
In the opinion piece, David Hackney (D-11th Legislative District), argues in favor of pursuing energy companies based on "attribution science," a theory within climatology that attempts to connect extreme weather events to human-caused impacts on climate.
Hackney references a recent UN report that “reflects major advances in the science of attribution – understanding the role of climate change in intensifying specific weather and climate events." He then says that fossil fuel companies bear more of the blame for climate change than the rest of the population and should, therefore, be held accountable in court.
"The truth is, we did not all equally contribute to climate change," Hackney argued. "Giant fossil fuel corporations and their executives... lied to the public, funded climate denial while protecting their own business operations, and continue to deceive consumers about their central role in the crisis."
The premise behind such lawsuits, however, is typically much less transparent than it may appear on the surface. Emails sent from the Michigan attorney general's office reveal that when state AGs sue energy companies alleging climate damage, it is usually because they were recruited into doing so by outside activist groups.
Publicly available information obtained by Legal Newsline shows that the recruitment efforts typically follow a clear pattern.
The process starts with the Rockefeller Family Foundation (RFF), which has given funds to Columbia Journalism School and paid for stories alleging that Exxon Mobil is responsible for climate change, records show.
Tort lawyers then connect with state attorneys general, citing those funded stories as evidence to convince the AGs into investigating and suing Exxon Mobil for climate harm. Local activist groups, which are often funded by RFF, also try to recruit AG offices and municipalities into filing lawsuits against energy companies. Lawyers who advise RFF - and also work for the Center for Climate Integrity (CCI) - assist in the recruitment campaign.
RFF and CCI work on fundraising initiatives to support the effort, recruit additional members of the tort team and compose memoranda to initiate litigation that is filed against fossil fuel companies.
The last piece of the puzzle involves the work of Bloomberg Philanthropies, which donated $5.6 million to the New York University School of Law to fund the State Energy & Environmental Impact Center (SEEIC). SEEIC uses money from that contribution to place privately-funded "Special Assistant Attorneys General" (SAAGs) into state AG offices to advance climate change-related litigation. So far, records show that a total of 18 SAAGs have been placed in at least 10 state AG offices.
Seven lawsuits of this kind have been filed so far by Connecticut, Delaware, Massachusetts, Minnesota, New York, Rhode Island and the District of Columbia. Public records show that many of these suits were initiated after the state AGs were recruited by RFF and Bloomberg Philanthropies.
Several other states – including California, Michigan, Oregon and Washington – were also recruited by this means but have not followed through with filing any lawsuits.
Emails obtained by Energy Policy Advocates, a nonprofit government watchdog group, appear to explain the discrepancy. The states that ultimately declined to file suit did so because they couldn’t attribute climate change to the companies.
The emails specifically shed light on why King County, Washington recently made a sudden move to withdraw its climate change lawsuit without offering up a reason.
Records show that Washington State Attorney General Bob Ferguson wasn’t able to find enough merit in the case to follow through with the suit. Despite having a desire to pursue energy companies, Ferguson could not credibly attribute specific harms to specific companies – a critical component of a successful tort filing.
However, Vic Sher, the tort lawyer responsible for recruiting the state AGs, came up with a solution to convince reluctant AGs into suing fossil fuel companies. To address the lack of evidence to support attribution claims, he ordered up a scientific paper on the topic, which he boasted about during a talk with law students at UCLA. The comments ended up being posted to Youtube.
“So how do we link emissions to specific corporate emitters? You know, obviously, if you can’t tell who’s doing it, you have a problem," Sher says during the talk.
Sher then goes on to explain that he recruited Rick Heede, a climate expert with the Climate Accountability Project in Colorado, to write a paper arguing that U.S energy companies are responsible for 25% of all global emissions. The goal was to make the paper appear to be a meaningful body of knowledge that could assist in litigation efforts.
"Now... why did I choose 25%, and what's the significance of these figures?" Sher asks the students. "Well, in order to prevail on a court claim, a plaintiff has to prove that it’s more likely than not that a defendant or a group of defendants were substantial contributors to the injury that the plaintiff has suffered. And I thought that one in every four tons of carbon emissions during this period during the great acceleration would unquestionably satisfy this substantiality requirement.”
Matt Hardin, board member of Energy Policy Advocates, says it would be deeply problematic for Washington State to pursue a new suit against energy companies based on studies that he says are murky and evidently agenda-driven.
"I think it would be unfortunate if well-funded plaintiff’s lawyers were able to use questionable paid-for studies with very suspicious origins to incite such litigation and attempt to profit from it, but it seems that Washington may be headed in that direction," he told Legal Newsline. "Fundamentally, there’s a problem when ‘research’ that appears to be the basis for these suits is paid for by those who seek to profit from the suits. The courts should be skeptical of this latest development in a long line of unsuccessful cases repackaging the same claim into different theories of recovery in state and federal court."
The Washington State Attorney General's Office did not return a request for comment when asked if the state intends to launch a forthcoming lawsuit against energy companies. Representative Hackney's office also declined to comment on the matter.
If Washington State does sue, it will be "a reversal of a reasoned position not to do so," Chris Horner, former board member of the law firm Government Accountability & Oversight, told Legal Newsline. "It would represent another of the increasingly popular, if transparently dubious ‘well the science changed’ rationalizations for political reversals."
Horner argues that the science did not, in fact, change. To fix that problem, he says the climate industry is now making large investments into attribution efforts to make it seem as if meaningful new information is now available to assist in litigation efforts.
“Not only were state attorney general investigations and litigation launched at the request of the plaintiffs bar, but the claimed scientific justification, ordered up (by admission of the very lawyer leading the charge), came after a particular ‘sympathetic attorney general’ office decided it would need more if it was to help the plaintiffs’ bar out, as asked,” Horner said.
Horner said that these new litigation efforts could also prove risky for the plaintiffs given that they rely heavily on public advocacy campaigns.
"Defamation certainly is conceivable given the public advocacy campaign in support of the litigation," Horner said. "It is difficult to imagine much more defamatory than what we now know is an orchestrated campaign of generally unhinged, often hysterical accusations of intentional planetary ruination and deaths of millions to ‘delegitimize’ opponents in the public square — insisting there is no reasonable doubt and that anyone who disagrees is nothing less than a liar.”