Energy Impacts Podcast: Phil Goldberg Talks Anti-Oil and Gas Lawfare
Welcome to the launch of David Blackmon’s re-branded podcast, Energy Impacts. My first guest after a 6-month hiatus is Philip Goldberg, Special Counsel to the Manufacturers Accountability Project (MAP), a project of the National Association of Manufacturers.
In this episode, Philip and David discuss the wave of lawfare campaigns mounted against the oil and gas industry by activist NGOs and law firms, and MAP’s efforts to counter them. Philip details the legal and economic implications, the role of federal vs. state regulations, and how these lawsuits could impact manufacturing, jobs, and consumer costs. Tune in to understand why both sides of the political aisle see fundamental flaws in this litigation strategy.
Highlights of the Podcast
00:14 – Podcast Relaunch & Guest Introduction
01:42 – The Rise of Climate Lawfare
02:18 – Background of the Manufacturers Accountability Project (MAP) 04:07 – Impact of Litigation on Businesses
05:46 – Are These Lawsuits Effective?
06:51 – The Real Goal of These Lawsuits
10:46 – History of Climate Lawsuits
13:27 – Shifting Legal Strategies
15:04 – Endgame: Will These Lawsuits Ever Stop?
19:27 – The Supreme Court & Legal Challenges
23:13 – Impact on the Manufacturing Sector
26:08 – Future of Climate Litigation & Public Involvement
27:25 – Closing Remarks & Acknowledgments
Transcript:
David Blackmon [00:00:14] Hey, welcome to the Energy Question with David Blackmon. I'm back after a little hiatus here for a few months. We're restarting our podcast now, and I have a really great guest here, Philip Goldberg, who is with the he's a special counsel for the Manufacturers Accountability Project that's affiliated with the National Association of Manufacturers, one of the wonderful trade associations for the business community in Washington, DC. Phil, how are you doing?
Philip Goldberg [00:00:42] Thanks so much, David, for having me on this. This is fantastic. Really appreciate it.
David Blackmon [00:00:46] You're so lucky to be living in Washington DC at this moment in time, aren't you?
Philip Goldberg [00:00:50] It's a little thing away from politics. I'll talk weather.
David Blackmon [00:00:57] There's never anything happening in the nation's nation's capital during. But that's where I wake up every morning and there's like 50 things I see immediately upon getting on X or, you know, and surfing the Internet. 50 topics I'd like to write about. It's just unbelievable how much.
Philip Goldberg [00:01:18] There's a lot going on and trying to dig into and understand all the different things that are happening. Takes a lot of time because there's so many there's so much below the surface that, you know, we as casual observers, we can't really know. We don't see. And so and it takes so much time to dig into all those different things that are going on right now. So it is a little bit of it, but it's you know, it's, as they say, may you live in interesting times.
David Blackmon [00:01:42] Yes, sir. Well, we're here to talk about an issue that's really dear to my heart. I've probably written half a dozen articles about this Lawfare campaign that's being mounted by some left wing NGOs and law firms and recruiting cities and counties and state governments to sue the industry over some pretty specious climate related changes. But before we get into that, I just want to give you a few minutes to talk about your background and what the mission of the The Accountability Project is.
Philip Goldberg [00:02:18] Sure. I appreciate again, the opportunity to come on your podcast. You know, so Map or Manufacturability project started about 5 or 6 years ago at Nam because the manufacturing community has been concerned about is sort of the you called lawfare, but you know, the use of the courts to sue companies, mostly manufacturers, over what are really social and political issues. They're not liability issues, but they think that there's value in going to the courts because it helps them, you know, get media attention or try to, you know, get money out of these manufacturers to pay for some of the issues that are going on. And so so and these are often your issues that are well known like climate change or, you know, you know, opioid abuse or, you know, firearm, you know, concern, you know concerns. I mean, you know, these are these are things that require significant attention. No one's under, you know, undercounting what the impact of all these issues are. But but the but the question is, is this a liability issue for the manufacturers or is this a public policy issue that we need to be driving through legislatures and regulatory agencies? And, you know, there are there's a movement out there just to sue. You know, it's this or that, the American litigiousness that, you know, that it's sort of like the first step. Well, who do we get to sue for this problem? Well, you know, sometimes lawsuits are not the answer. And so that's why, you know, we started the Manufacturers Accountability Project because, you know, we understand we want to be part of the solution. We want to be part of the dialog. But but that's but litigation and suing isn't always the answer. And that's what we're.
David Blackmon [00:04:07] Yeah. And it's not always the answer. And unfortunately, though, it happens a lot. I was having a conversation with our producer beforehand talking about when I was with a company called Burlington Resources. We were an independent producer years ago and any given month we would have over a thousand pieces of litigation that that company was having to deal with, you know, from, you know, from just employee complaints or, you know, the royalty owner lawsuits, things like that, all the way up to major pieces of litigation, class action lawsuits brought by the federal government and state governments. And it becomes a real burden within these companies. They have to try to manage all of these lawsuits at a given time. Right.
Philip Goldberg [00:04:54] It is. And, you know, a lot of times, you know, and I'll say this, I mean, the companies that that I work for, my clients, if they injure someone, they're not in any way saying we shouldn't have to be liable for somebody, but they shouldn't, you know, they shouldn't have to pay for people. They have an injured and they should and they shouldn't be paying for things that are just these larger society issues dealing with, you know, external issues that related to products or other things that, you know, that are often there's a criminal or there's or there's some activity or there's a or regulated structure around it, or there's something else that is at issue here. But they just say, hey, let's just do. And that's something that's of concern to all manufacturers, regardless of where you are and what what what sector you're in, you only want to be sued when you actually did something that wrongfully caused somebody else's harm.
David Blackmon [00:05:46] Yeah. Well, in this this particular suite of lawsuits that I, I like to call a lawfare effort because I it's it's really a highly coordinated thing between the governments and the NGOs and the law firms. You know, we've had several significant decisions in recent months and cases in Baltimore, New York state, city of Honolulu, and the most recent one in Anne Arundel County, in what I'm forgetting now is it in Maryland?
Philip Goldberg [00:06:19] It's in Maryland, Yeah.
David Blackmon [00:06:20] Yeah, in Maryland.
Philip Goldberg [00:06:21] And and I'll say more recently as we're taping this this morning, the New Jersey trial court just dismissed the New Jersey State case.
David Blackmon [00:06:32] Yeah. Man, I didn't even see that today. So overwhelmed. I didn't even see that. I'm going to have to go look it up. Right. So what is I mean, the reality is, even though there cost and companies a lot of money. These plaintiffs are not having a lot of success in the courts, are they?
Philip Goldberg [00:06:51] They're not. So and that's not always their goal. Their goal is is often to to bring the litigation, to use the litigation to grab media attention. You know, ultimately, if they can, you know, win some of these cases, obviously I'd like to do that. But this is you know, if you go back and, you know, sometimes, you know, context is important, this litigation, the idea of suing energy companies for climate change and saying you caused climate change and therefore you should have to pay us or you should have to do X, Y or Z through the courts. Started about 20 years ago with the case called AEP versus Connecticut. And there were a few other cases that were filed the same time, an AP verse. It went up to the Supreme Court in 2011 and the court said, no, this is not a liability issue. These are we've got federal agencies like the EPA to to to deal with this. And that's a good thing. We don't want judges doing this on an ad hoc case by case basis. And they also said this was something of special federal interest and that, you know, it would be inappropriate to use any kind of state law to govern emissions and, you know, climate change issues. Right. So you had a group that got together the next year in 2012 in the area, what's called the La Hoya Conference. And, you know, they published their report on it's not like I'm saying anything that's not available online or that they didn't say themselves, but they decided that they wanted to still use the courts to try to drive their policy agenda on the climate. And so what they did is they just looked at AP, which is, you know, a federal law case targeting mostly utility companies. And they were the use users of energy, you know, or generators of energy, but users of oil and gas, they were it was, you know, different legal theories and all that. And they said, let's just try it, bring a state case and let's sue the energy producers and let's, you know, kind of mess with the legal theory. So it just doesn't look like AP versus Connecticut, even though we're trying to do the exact same thing. And and so the first court that ruled on this of any significance was the the the U.S. Court of Appeals for the Second Circuit and here in New York City's climate case. And they said this is just AP verse, Connecticut all over again. And they and, you know, they said this is not like we don't we're not being fooled here. And, you know, as a great opinion, they kind of went through all the legal theories and went through why this is you know, it's kind of AP redux. And it said you can't just move the deckchairs around. It's the same. And as you said, over the past year, we've now gotten rulings out of Delaware, Baltimore and Arundel County, Maryland, this morning in New Jersey and the state of Delaware. I think it's a already am. I might be missing 1 or 2 now. New York City, again, just so New York City took that even though they were rejected by the Second Circuit, they filed yet another lawsuit to try to go to their state courts instead of the federal courts. And the state court just a couple weeks ago said, no, this is for the same reason Second Circuit said it doesn't doesn't fly here. So you have all these these courts are saying this is not a liability inducing event. This is not about, you know, selling oil and gas to us is not about it's not a liability inducing event. This what we do with climate change and everybody agrees climate change is something we need to deal with. It's incredibly important. So we feel the very same way. But it's but it's what are we going to do about it and where's the right place to drive those solutions? On the other side of the ledger, you have the Hawaii Supreme Court that said this case can go forward. And the the defendants appeal that the gas companies appealed that to the Supreme Court and the Supreme Court decided not to hear the case. And so, you know, that will, you know, at least go forward at some level. And then you've.
David Blackmon [00:10:46] Got I'm trying to remember in that in a a county court. Back to a county court.
Philip Goldberg [00:10:51] Yeah. It's the the city and county of Honolulu is not in the case. And so it would go back to, you know, state court and in Hawaii. And then the Boulder trial court followed the Hawaii case, not the other cases. And and so the Boulder Supreme Court, I mean, their Colorado Supreme Court decided they would hear that case. And so there's a hearing just in in in a few days. And, you know, on that one. And so, you know, if you start looking at the ledger, you know, things are clearly, you know, working in our in our trending and kind of what we've been saying is that these are not liability inducing events. This is not a state law issue. State. State law can't control emissions and govern emissions all around the world. In other states. That's only federal law can do that. And that's why, you know, these courts have been saying that, you know. These cases. You know, they've been dismissing these cases.
David Blackmon [00:11:49] What you do have to, I guess, give the lawyers and the plaintiffs credit for being creative in in how they try to frame these cases. The city and county of Holland, Lulu, actually brought the claim under the state's consumer protection laws. Right. Right. Claiming false advertising over emissions what is supposed to be a climate emissions issue and seeking damages under consumer protection laws. It you know, and just the kind of outside this, you see a similar strategy happening in California where Rob Bonta, the attorney general there, has brought a case against Exxon Mobil on plastics litigation, claiming false advertising on behalf of on the part of Exxon Mobil, which I'm about expecting you to comment on. But it's just to make the point that they're trying to they realize, I think they don't really have a case on the emissions question. I mean, Hawaii is out in the middle of the Pacific Ocean. If any emissions did cause climate change from the oil and gas industry, it's coming from all groups all over the world. You're out in the middle of the Pacific Ocean. You can't say it's all because of some company that owns a refinery on Honolulu. And and so I think they realize, don't they, that they don't really have a legitimate claim under on the emissions question. So they're trying to attach it to these other state and local statutes to to try to to make a money claim. I mean, that's I'm not a lawyer, but that's how it seems to me.
Philip Goldberg [00:13:27] Yeah, and you're exactly right. I mean, I've said it's kind of like legal spaghetti being thrown at the wall to see if anything sticks. You know, these first cases were brought under federal public nuisance law. Then Abe first Connecticut said no to that. Then they tried state public nuisance law. And and and that was quickly kind of looked at and said this isn't a public nuisance case. And and then they said, okay, well, what we're really saying is that, you know, that they didn't tell us the truth or they were they downplayed or they did. So they started bringing them under Consumer Protection Act. There's some cases that are brought under State Rico saying that there's some grand conspiracy. There's others like they really are trying anything that they can just to get past these motions, to dismiss and be able to wage the litigation. Because, again, as we talked about before, they find value in just being able to talk about the litigation, get the media coverage and do all of that and apply pressure through, you know, through lawsuits. But, you know, at the end of the day, this isn't about and this is when what the New Jersey court said today, it's not about how these cases are characterized. It's not about how artfully pleaded these cases are. These all these cases are about trying to govern and impose liability on worldwide emissions world, you know, the global production and promotion and sale of, of, you know, these fuels. And that's beyond the the role of any state law, whether it's a state Consumer Protection Act law, whether it's a state public nuisance law, whether it's there are any of these things. And so that's why the courts are saying, you know, it doesn't matter how much legal spaghetti throughout the world, none of this is going to stick.
David Blackmon [00:15:04] Well, you mentioned it a minute ago. You know, you understand why they're going to the courts. Okay. I mean, it's kind of obvious, but it does take away resources from what could otherwise be. I mean, you could focus on because this is a problem. Everyone is focused on working on it. Right. And climate change and people you know, everyone's trying to to work on an issue that's important to society in a constructive way. But this is not a constructive way to do it. And you would think eventually, after you get poured out of enough courts, you might back up and try to reassess the strategy. But but it just seems to me, anyway, as an observer from outside, that it just continues to multiply, that the number of suits, bringing in more plaintiffs all the time, more jurisdictions. How do we ever get to an end to all this? Is there going to be an end?
Philip Goldberg [00:16:03] Well, there's a lot you said there, so I'll try to.
David Blackmon [00:16:05] Sorry.
Philip Goldberg [00:16:05] No, no, it's all good. I'll try to talk about different parts of it. But, you know, I think that, you know, that, again, going back in context and in appreciating that, you know, the development of electricity and oil and gas and all the things that the way we we developed energy going back to the last hundred 50 years has fundamentally changed modern life. It has led to, you know, electrification was called the greatest advancement of the 20th century, the ability to refrigerate, you know, homes, you know, all those things. And the medicines, all of that that we're now able to do because of that, let alone all the transportation and information infrastructure and how we've gotten there. Or how we got here, I should say, is not how we're going to go go going forward. Right. Like we have to change how we source the news energies in ways that are going to be more sustainable for both us and for the planet. And that's something that everybody's working on. The manufacturing community is fully engaged on that at every different level, and that should be where the focus of the public policies and that and whether it's the state or local governments, federal government, it should be where it should be on how do we develop the innovations and how do we develop the technologies that are going to allow us to do that so that we can sustain modern life, sustain the planet, and we know we're not going to be facing the kind of issues that that we are today. That versus the litigation and the continual drumbeat of these cases. It's part of the the political give, you know, push and pull. I mean, if you view this litigation as a political tool, not necessarily as a tool, then and now, it's no longer. You let's go see if we can get state attorneys general filing claims. A lot of it is, you know, let's go get local counties, local. You know, look, you know, some local governments, you know, like Baltimore or whatever. And and there's a lot of those and there's a lot of.
David Blackmon [00:18:10] There are.
Philip Goldberg [00:18:11] That would agree politically with you that they'd like to do something about climate change. They might agree that they'd like to see some money to deal with some climate adaptation costs. And they may agree that they're not a big fan of the oil and gas industry. That's not that doesn't make a litigation. But they but they're willing to sign on because, you know, the foundations and the individuals and the law firms that are behind all this and funding all that say it's not going to cost you a dime. You just you just sign on the dotted line here. We'll take it from here. We just need you to, like, be willing to let us do this in your name. And so a lot of that is what's going on. And so a lot of local governments, you know, you know, don't necessarily aren't getting into the nitty gritty of all the legal theory. They're saying, hey, these guys are offering to do something for free that may give us money at some point. We agree climate change is a problem. Let's just sign and let's see what happens. And if it's bad law, if it's bad, whatever that policy, you know, we'll deal with that later. And so that's I think so there's a a, you know, a endless number, presumably, of local governments that might sign on to these things. And the ability to file lawsuits has nothing to do with whether lawsuits are going to be successful. Anybody can file a lawsuit and they they you know, they're good at kind of going around and trying to get people to sign onto them.
David Blackmon [00:19:27] Well, one point I always try to make when I write about this issue is the regulation of emissions, and air pollution has always been. The federal government has always had primacy on that issue. And there's a reason for that because like you said, we have thousands of cities who could theoretically file these lawsuits in counties, and they just all sorts of different government entity entities that do it. But if you end up getting in every jurisdiction, a different decision related to liability, then it becomes virtually impossible for companies to do business in the United States. If you have to do it in multiple jurisdictions, there's no way you could hope to comply with different regulations in every city and county related air emissions. And that's why the federal government has always assumed primacy over that. And isn't that really kind of the compelling argument that they were making, the plain error of the defendants in the whole case we're making in that writ of habeas corpus, Right. I mean, that was kind of at the base of of seeking relief from the Supreme Court.
Philip Goldberg [00:20:36] Yeah. And if you go back, what you just said is other than the plaintiffs, bringing the cases is generally considered an accurate representation of what the law is. Right. And so if you go back to AP versus Connecticut, the Obama administration filed the brief in that case saying these are not good lawsuits, that these are that, you know, that the causes of climate change are many the places where they have, you know, that, you know, where climate impacts are being felt are many. You know, there's there's any number of, you know, plaintiffs in defendants that could bring these kinds of cases against, you know, you know, it could be these kinds of cases, any number of defendants that could be sued. That's why this is not a, you know, a litigation that is targeted at, you know, these people were injured by the wrongful acts of those defendants. Right. And so because any plant, any anybody in America can air in the world can make that argument against almost anybody else in the world that they contribute to climate change at some level. And that's what the Obama administration said and said. So, you know, deciding who to blame for this, I think they said was capacious. The Trump administration said the same thing when they proposed these lawsuits. They said no state law can't govern this. This is a. These are federal issues. This is not a litigation issue. And they oppose the litigation. And just a few months ago, the Obama Biden administration weighed in. And while they did not, you know, they suggested the Supreme Court not grant the review in Honolulu, but they said, you know, for all we know, this will be preempted by the Clean Air Act or because they're in it's interstate or international emissions and no state law can govern that. I mean, they've acknowledged. The fundamental legal flaw in the entire litigation. But then they told the court, you know, don't you know, don't hear the case because. Whatever. And so that's so whether legal scholars on both sides of the political aisle are largely in agreement that you can't use state law, whether it's in Hawaii or Delaware or, you know, New Jersey, to say what what is what is liable. Inducing conduct liabilities in conduct in Texas or Kansas or Minnesota or Maine or Europe or China or Russia, because all this is happening all around the world, outside of that individual state and that state can't say, well, we're going to play our state's law and hold you liable for those things you did everywhere else, Which is what? Which is the fundamental problem that everybody across the aisle, both sides of the aisle have said is the fundamental problem with this litigation.
David Blackmon [00:23:13] So when I look at this issue, I always look at it from the perspective of the oil and gas industry, because that's my background. But in reality now certainly represents a lot more of the sectors of the economy than oil and gas producers. And you wouldn't be mounting this effort through now if it wasn't impacting Nam's overall membership. Talk about the kinds of impacts this suite of lawsuits is having on other manufacturers, manufacturers of all kinds of products.
Philip Goldberg [00:23:45] Yeah, absolutely. You know, the. What were the people behind this litigation have acknowledged and have said is that they're using this litigation. If it if they can, because they can succeed, is to raise the price of energy on all of us, on consumers, on businesses. Families would have to make it more expensive for us to, you know, put gas in our cars and cool our homes, whatever it is that we're going to do, that's going to have a huge impact on the manufacturing community because manufacturing processes, you know, involves the use of energy. And if we're going and if that's going to if we're going to drive up the cost of energy through this litigation, drive up the cost of manufacturing, it's going to hurt jobs, going to hurt our competitiveness globally. And there's no there's not to be any benefit for it towards climate change as a result of all this. So we're going to we're going to have all these pain points in the labor force and in our manufacturing and international trade and competition for no global benefit. And so that's you know, that's what's frustrating about all of this, is that if we want to do something about the climate, let's do things that actually are going to help reduce the impacts of climate change and reduce climate change. You know, at the end of day, to the place where we again, we can we can we can live on this planet sustainably. And we are and we can maintain our lifestyle and your, you know, modern lifestyle at some level in a sustainable way. And so so the manufacturing community, you know, within this specific type of litigation is very concerned about the impacts of what it could mean for the manufacturing community. But the broader point kind of where we started this conversation is. This may be against the oil and gas industry today over climate change, but tomorrow and as you indicated might be, you know, certain company manufactures over, you know, plastics production or over other things. You know, any time that there's a there's a there's a social issue or political issue that any way involves, you know, products or companies that do things where, you know, this litigation would say just go through the companies and try to get the policy you want through, you know, through the litigation process, rather than having to go through the checks and balances of the regulatory and legislative processes. And that's just not how we are. That's not how we're supposed to do business in this country.
David Blackmon [00:26:08] That's not. But it seems to be the way it's all going, doesn't it? Listen, we're running up against time, but I wanted to give you a chance before we close those up here to let everyone know where they can find more information about your project. The National Association of Manufacturers. And then become more involved?
Philip Goldberg [00:26:28] Yeah, absolutely. I mean, it's the Manufacturers Accountability Project. We're online. We've got a, you know, website. We've got materials on there about the litigation explaining, you know, much of the things that we talked about today, you know, but a lot of times it's it's, you know, talking to, you know, people in your communities or state legislators, wherever it is, and just say this doesn't seem right and I don't want my bills going up so that, you know, somebody can bring these lawsuits. And, you know, the lawyers, by the way, you know, would poll, you know, 25% for their own pocket. Right. I mean, the lawyers are bringing this. So not all this money would actually go to any kind of climate adaptation or the things that, you know, they say this litigation is about, you know, there's a huge part of it that goes in the pocket of the people who are bringing the litigation. They've got a lot, a lot at stake. And so, you know, if we want to do something about these issues, there's much more efficient and better ways to do it. And we have a lot of that information on our website.
David Blackmon [00:27:25] Well, Phil, thank you very much for joining me today. Really appreciate it. This is great information that people need to have, and I wish you the best of luck. I hope your very successful.
Philip Goldberg [00:27:35] And I appreciate it and thank you for having me on. And I didn't realize you were on hiatus, but I'm glad the show's back and you're.
David Blackmon [00:27:42] My first.
Philip Goldberg [00:27:42] Guest. Yeah. Yeah. And I appreciate that. So thank you.
David Blackmon [00:27:45] Thank you. And thanks, everyone, for joining us. And thanks to our extraordinary producer, Erick Parel, and the folks at the Sandstone Group for producing this podcast. I'm David Blackmon. And that's all for now.