Carl Cannon: Private Firms, States Use Tobacco Lawsuit Playbook in Energy Cases

[Note: Carl M. Cannon is an excellent investigative journalist - a real journalist - who writes at RealClearPolitics. Cannon and fellow real journalist Jonathan Draeger combined on this piece. It is a long, but great read about the big plaintiff firms who are mounting a lawfare campaign applying tactics used against the Big Tobacco firms in the 1990s/2000s to the oil and gas industry. An excerpt appears below - you can read the full piece at this link. Enjoy!]

Last September, tens of thousands of climate change true believers marched to protest President Biden’s appearance before the United Nations. Although the Biden administration ushered into law sweeping legislation aimed at combatting global warming and earmarked tens of billions of dollars for alternative energy ventures, the demonstrators were not appeased.

Their objective, spelled out in placards, is as specific as it is drastic: “End Fossil Fuels.” The demand is for Western nations to immediately ban any new oil and gas extraction projects.

In Europe and the United States, these eco-activists have issued apocalyptic warnings about global warming while leveling threats against election officials, corporations, and entire industries. Some of them commit unconnected acts of vandalism ranging from desecrating priceless European works of art and smashing the Magna Carta to storming the court during the finals of the U.S. Open tennis tournament and disrupting professional golf tournaments.

Protestors carry placards and shout slogans as they cross the Brooklyn Bridge during a Youth Climate Strike march to demand an end to the era of fossil fuels, on Friday, Sept. 20, 2024, in New York. (AP/Andres Kudacki)

Other actions are more on point – and more disruptive and dangerous. Protesters have chained themselves to the White House gates, tied up traffic in New York City, London, and Washington, blocked bridges, and sabotaged oil pipelines. The perpetrators of such measures (and their sympathizers) describe such methods as “direction action.” Critics use a different term. They call it “eco-terrorism.”

However they are characterized, such antics serve mainly to alienate the public. But a far more potent weapon is being deployed against energy companies: A cadre of liberal lawyers, environmental activists, and attorneys general from Democratic states and municipalities are systematically suing energy companies and demanding multibillion-dollar payouts. Their efforts have not risen to a top-tier concern in American politics, but that is about to change: The latest iteration of “lawfare” is now fully deployed and expected to reach critical mass in 2025.

These well-funded lawsuits, and there are now more than 30 of them, are not equivalent to throwing a can of soup at an art masterpiece. The coordinated litigation strategy is nothing less than an attempt to throw a monkey wrench into the industry that makes modern life possible – that heats and cools Americans’ homes and offices, supplies gasoline for transportation and agriculture, and powers the nation’s electric grid.

“In politics, it’s all about who can tell the best story – and the environmental movement tells a compelling story about the costs of climate change,” says Wayne Winegarden, a senior fellow at the Pacific Research Institute, a think tank that supports free market solutions to global warming and other environmental issues. “But the hope that we can run the economy on solar and wind is delusional. We simply don’t have an economy without oil.”

“And it’s not just energy,” Winegarden adds. “Some 6,000 different products are oil derivatives, many of them essential to everyday life.”

Those commodities range from solvents, motor oil, antifreeze, housepaint, linoleum, and synthetic rubber to heart valves, dentures, eyeglasses, cortisone, artificial limbs, car battery cases, vinyl records (and else anything made of vinyl), and basically all plastic products.

Climate change activists acknowledge the point while also maintaining that benign substitutes can be found for plastics and other materials, or that exceptions could be made for essential products. What they won’t acknowledge is that when it comes to energy, the reality seems to be – at least for now – that the country (and the world) is dependent on fossil fuels.  

The energy mix is always changing. Twenty-five years ago, coal-burning power plants produced slightly more than half this nation’s electricity. Today, it’s less than 18% and falling. When America’s total energy needs are added up, coal is down to 9% – the same as renewable sources and nuclear power. But petroleum (38%) and natural gas (36%) are indispensable.

Nonetheless, the lawyers, activists, and like-minded politicians leading the global effort against fossil fuels make no apologies. Quite the opposite: U.N. Secretary-General António Guterres has repeatedly condemned the industry. Earlier this year, he called the fossil fuel industry the “godfathers of climate chaos” while urging governments to find an exit ramp off “the highway to climate hell.”

Writing in the journal BioScience, a group of the world’s leading climate experts recently issued yet another dire warning. “Much of the very fabric of life on Earth is imperiled,” they wrote. “We are stepping into a critical and unpredictable new phase of the climate crisis.”

In the United States, these issues have a strong partisan component. Democrats favor tighter environmental rules and have appropriated vast sums of public money to research and produce renewable sources of energy. Republicans tend to be in the other camp. Although in the last weeks of the 2024 campaign, Donald Trump stopped calling global warming “a hoax,” he has reprised Sarah Palin’s “Drill, Baby, Drill” mantra to enthusiastic responses from his audiences.

United Nations Secretary-General Antonio Guterres  (AP/Alexander Zemlianichenko)

The most noticeable environmental wedge issue in this campaign has been hydraulic fracturing (usually just called “fracking”), a process that entails drilling deep into the earth and pumping a high-pressure mixture of water, sand, and chemicals to forcibly release the gas embedded in layers of rock. Until relatively recently, natural gas was hailed as an eco-friendly alternative to coal and oil. No longer. When Kamala Harris first ran for president four years ago, she said there was “no question” that she would seek a federal ban on fracking.

Joe Biden, the winning Democratic Party candidate in 2020, wouldn’t go that far – and Harris acquiesced to his policies after being chosen as his running mate. The issue resurfaced this summer after Harris became the nominee, with Republicans believing her past antipathy to fossil fuels is a winning one for them, particularly in Pennsylvania. Some environmental activists think Trump supporters might be reading the wrong tea leaves. As environmental writer William McKibbon noted in the pages of The New Yorker, in the waning days of the 2020 campaign against President Trump, Biden called global warming “an existential threat to humanity” while vowing to end federal subsidies for the oil industry.

“We have a moral obligation to deal with it,” Biden added during his last debate with Trump, “and we’re told by all the leading scientists in the world we don’t have much time.” This comment set off an interesting exchange.

TRUMP: “Would you close down the oil industry?”

BIDEN: “I would transition from the oil industry, yes.”

TRUMP: “Will you remember that, Pennsylvania?”

As Bill McKibben noted, 12 days after the election, Joe Biden carried Pennsylvania and, with it, the presidential election. McKibben’s point is that public opinion may be shifting. Yet even by 2020, another front in the war against fossil fuels had been opened. The venue was no longer solely the ballot box.

It was also the judicial system.

Money Talks

The first spate of lawsuits against oil companies for offering their products on the open market was filed in 2017 in California state courts. The plaintiffs were eight coastal cities and counties (San Francisco, Oakland, Santa Cruz, Richmond, Imperial Beach, and the counties of San Mateo, Marin, and Santa Cruz). The defendants were Shell Oil, Chevron, ExxonMobil, and more than two dozen other energy companies. The identical language in the cookie-cutter lawsuits began with a rousing indictment of the entire industry:

Defendants, major corporate members of the fossil fuel industry, have known for nearly a half century that unrestricted production and use of their fossil fuel products create greenhouse gas pollution that warms the planet and changes our climate. They have known for decades that those impacts could be catastrophic and that only a narrow window existed to take action before the consequences would not be reversible. They have nevertheless engaged in a coordinated, multi-front effort to conceal and deny their own knowledge of those threats. … At the same time, Defendants have promoted and profited from a massive increase in the extraction and consumption of oil, coal, and natural gas, which has in turn caused an enormous, foreseeable, and avoidable increase in global greenhouse gas pollution and a concordant increase in the concentration of greenhouse gases, particularly carbon dioxide (“CO2”) and methane, in the Earth’s atmosphere. Those disruptions of the Earth’s otherwise balanced carbon cycle have substantially contributed to a wide range of dire climate-related effects, including global warming, rising atmospheric and ocean temperatures, ocean acidification, melting polar ice caps and glaciers, more extreme and volatile weather, and sea level rise.

ExxonMobil, one of the defendants in the Colorado lawsuits. (AP/LM Otero)

In April 2018, two Colorado jurisdictions, San Miguel County and the city of Boulder, filed suit against ExxonMobil and Suncor (formerly Sun Oil.) Those lawsuits allege that the two companies knew for years that their natural gas facilities and the gasoline it sold to filling stations were contributing to climate change. The claims of actual damages are vague – the suit suggests, without explicitly saying how, that warmer temperatures will mean lower snowpack in the mounts and, thus, less water for the rivers below. By that logic, any state, city, or country in the country could sue any oil company operating in the country, which is the idea.

Members of Congress and climate justice advocates attend an event on the Big Oil Windfall Profits Tax Act, March 30, 2022, in Washington. (AP/Mariam Zuhaib)

Bonta’s public statements mirrored the language of the California lawsuits – all the litigation, really – by stressing what the plaintiffs have characterized as the energy companies’ deceptions about the effects of fossil fuels on the Earth’s climate.

[End]

Again, you can read the full piece here.

That is all.