Report June 2008 Atlantic
Monthly
Climate-change litigation is
heating up. Will the legal strategy that brought down Big Tobacco work against
Big Oil?
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Conspiracy
Theory |
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SANDBAGS LINE the quickly eroding coast of |
During the tobacco wars of the 1990s, attorneys Steve Susman and Steve Berman stood on opposite sides of the
courtroom. Berman represented 13 states in what was then seen as a quixotic
attempt to recover smoking-related medical costs, and conceived the strategy
that would break the tobacco industry’s back: an emphasis on charges of conspiracy
to deceive the public about the dangers of cigarettes. Susman
had turned down offers to represent
The Eskimo
As scientific evidence accumulates on the destructive impact of
carbon-dioxide emissions, a handful of lawyers are beginning to bring suits
against the major contributors to climate change. Their arguments, so far, have
not been well received; the courts have been understandably reluctant to hold a
specific group of defendants responsible for a problem for which everyone on
Earth bears some responsibility. Lawsuits in California, Mississippi, and New
York have been dismissed by judges who say a ruling would require them to
balance the perils of greenhouse gases against the benefits of fossil
fuels—something best handled by legislatures.
But Susman and Berman have been
intrigued by the possibilities. Both have added various environmental and
energy cases to their portfolios over the years, and Susman
recently taught a class on climate-change litigation at the University of Houston Law Center. Over time, the two trial lawyers have
become convinced that they have the playbook necessary to win big cases against
the country’s largest emitters. It’s the same game plan that brought down Big
Tobacco. And in Kivalina—where the link between
global warming and material damage is strong—they believe they’ve found the
perfect challenger.
In February, Berman and Susman—along
with two attorneys who have previously worked on behalf of the village, and
Matt Pawa, an environmental lawyer specializing in
global warming—filed suit in federal court against 24 oil, coal, and electric
companies, claiming that their emissions are partially responsible for the
coastal destruction in Kivalina. More important, the
suit also accuses eight of the firms (American Electric Power, BP America,
Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of
conspiring to cover up the threat of man-made climate change, in much the same
way the tobacco industry tried to conceal the risks of smoking—by using a
series of think tanks and other organizations to falsely sow public doubt in an
emerging scientific consensus.
This second charge arguably eliminates the need for a judge to
determine how much greenhouse-gas production—from refining fossil fuel and
burning it to produce energy—is acceptable. “You’re not asking the court to
evaluate the reasonableness of the conduct,” Berman says. “You’re asking a
court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’
emissions; they would derive from bad-faith efforts to prevent the enactment of
public measures that might have slowed the warming.
Berman and Susman aren’t alone in
drawing parallels between the actions of the defendants and those of the
tobacco industry. The Union of Concerned Scientists, an environmental advocacy
group, has accused ExxonMobil of adopting the
cigarette manufacturers’ strategy of covertly establishing “front” groups,
promoting writers who exaggerate uncertainties in the science, and improperly
cultivating ties within the government. The oil company, it says, has “funneled
approximately $16 million to carefully chosen organizations that promote
disinformation on global warming.”
Conspiracy Theory
“The strategy to foster
doubt is very effective,” says Naomi Oreskes, a
professor of history and science studies at the University of California at San
Diego. Oreskes is writing a book on the similar
methods that the tobacco and fossil-fuel industries have used to challenge
unwelcome scientific evidence. “If ‘nobody knows,’” she says, “then nobody is
to blame. If ‘nobody knows,’ then how can we do anything about it?”
The research and public-awareness efforts funded by Big Oil
involve some of the same scientists and other professionals who once worked on
behalf of Big Tobacco. For instance, Frederick Seitz, a former president of the
National Academy of Sciences, who died in March, served as a research adviser
for R. J. Reynolds Tobacco Company and then founded the George C. Marshall
Institute, an ExxonMobil-funded think tank that has
challenged the connection between greenhouse gases and global warming. (The academy dissociated itself from Seitz’s conclusions in 1998.)
The energy industry’s ties to government, like the tobacco
industry’s, have been unusually tight, and its lobbying efforts demonstrably
effective. Philip Cooney, a liaison between the Bush administration and federal
environmental agencies, edited uncertainty into reports on global warming by
top government scientists from 2001 until 2005, when he resigned after examples
of his changes were published by The New York Times. Before joining the
White House, Cooney had worked for the American Petroleum Institute; a week
after his departure, ExxonMobil announced he was
joining the company. “In a sense, ExxonMobil walked
right into the room of the science program,” says Rick Piltz,
the federal official who blew the whistle on Cooney. A government memo obtained
by Greenpeace outlines a State Department official’s talking points for a
meeting with energy-company lobbyists: the president, the memo says, “rejected
Proving that energy companies tried to slow government action on
global warming won’t be hard. The challenge in the Kivalina case, as it was in the breakthrough tobacco cases,
will be to prove that these companies lied in the course of their business, and
were aware that the consequences could be dangerous. “You don’t want to
interfere too much with efforts by people to lobby,” says Eric Posner, a
professor at the University of Chicago Law School. “On
the other hand, if they’re deliberately engaging in deception, there’s a
stronger argument.”
Climate-change litigation is so new that legal experts have little
idea how to handicap it; in unexplored areas of tort law, cases become pivotal
only in hindsight. Some legal scholars are skeptical of the merits of the Kivalina case, but many others are looking on with
interest. The cultural and political winds are certainly blowing in a favorable
direction—and these winds often affect courts and juries. That factor, along
with the very deep pockets of Big Oil, is likely to keep the lawsuits coming,
testing different theories and different arguments. “It’s sort of like when
infantry used to charge the machine guns,” says Joseph Wayne Smith, an
Australian lawyer and the author of Climate Change Litigation. “A lot of
them would get mowed down, but eventually a wave would get through and take out
the pillbox.”
The first tobacco suits were filed in the 1950s, but it wasn’t
until 1988 that lawyers were able to find chinks in the industry’s armor. The
first lawsuit to succeed was also the first to accuse the industry of
conspiracy. It’s anyone’s guess whether climate-change litigation, when mapped
to that time line, is closer to the 1950s or to 1988. Indeed, it’s not clear
whether warming-related monetary damages will ever be won from energy
companies—much less whether they should be. But if the charges do stick in the Kivalina case, the defendants can expect many more in short
order, as island nations, ski resorts, drought-stricken communities, and
hurricane victims line up for their share. Regulation and litigation are two
sides of the same coin. By working aggressively to prevent one, the energy
companies may have left themselves open to the other.
Update: Matt Pawa's name was
added to the online version of this article on May 21.