Want to Stop Climate Change? Take the Fossil Fuel Industry to Court
In November 2013, American climate scientist Richard Heede, of the Colorado-based Climate Accountability Institute, published a paper with a revolutionary thesis. After nine years of researching the energy industry in dozens of countries, he concluded that nearly two-thirds of the world’s carbon dioxide and methane emissions dating back to the dawn of the industrial era were the responsibility of just ninety companies. Heede called them the “carbon majors.”
Not surprisingly, the biggest players were publicly owned fossil fuel corporations like Exxon-Mobil and Chevron, along with state-held or nationalized energy monopolies in countries like Russia and Saudi Arabia. Just five investor-owned companies—BP, Chevron, Conoco-Phillips, ExxonMobil and Shell—produced enough fossil fuel to account for 12.5 percent of human-generated CO2 since 1854. Seven of the carbon majors are cement manufacturers, a particularly noxious, carbon-intensive industry. The eighty-three energy producers on Heede’s list extracted, refined and marketed the oil, gas and coal that have powered modern civilization. Along the way, they started the process that will ultimately cause our climate system to crash.
Heede’s paper, published in the journal Climatic Change, is arguably the most provocative piece of scientific research in the climate field in years. However, except for a dismissive reference in a New York Times blog and a small piece in the Los Angeles Times, the major American media outlets ignored it.
But the lawyers didn’t.
In September, two months before Heede’s article was published, leading environmental attorneys from around the world met with Heede at a confidential workshop at American University in Washington, DC, to discuss what role his findings might play in lawsuits that could force fossil fuel companies (or their government regulators) to reduce greenhouse gas emissions.
Matthew Pawa, a climate attorney based in Massachusetts, calls Heede’s work “hugely important.”
“What Heede did helps assign blame. It’s a list with names and numbers. It individualizes responsibility in a way that had not been done before,” says Pawa, who brought a suit against ExxonMobil and other carbon majors seeking climate-related damages for an Alaskan Eskimo village that will be largely engulfed by the Chukchi Sea within a matter of decades.
One well-established environmental lawyer is in the preliminary stages of putting together a lawsuit employing Heede’s statistics. Other attorneys were quick to praise the study, but cautioned that no one has yet hit upon a legal theory that can use Heede’s work to force the carbon majors to cough up some of the astronomical sums that experts believe must be spent worldwide to adapt to rising seas, heat waves, droughts and other extreme-weather events caused by climate change—not to mention help pay for the damage already caused.
“You really need the science to do anything legally,” says Sharon Eubanks, the former head of the Justice Department’s “tobacco team,” which got a federal judge to award a civil judgment against the major cigarette companies in 2006 under the Racketeer Influenced and Corrupt Organizations Act. “Policy, litigation—all of that follows the science,” she adds. “But that’s far from all you need. You need a legal theory that fits the facts and can survive attack in a real courtroom.”
As Pawa explains it, “We’re where the tobacco lawyers were before they started winning. It takes time and it takes persistence for the legal theories to evolve and mature.”
While the industry scoffs at the importance of climate-change lawsuits, Big Carbon is thought to be taking them very seriously in private—especially after a federal appeals court found in 2005 that US cities and even individuals suffering economic and other damages from climate change had standing to sue under the National Environmental Policy Act. The plaintiffs included the cities of Oakland, California, and Boulder, Colorado, along with several members of Greenpeace and Friends of the Earth, ranging from a maple tree farmer to a marine biologist. An analyst with the conservative Pacific Legal Foundation called the idea of such a lawsuit “nuts”—but within four years, a federal judge had ruled for the plaintiffs, opening the courthouse doors to new classes of litigants.
Some legal analysts believe that fossil fuel producers could be vulnerable to fraud or civil conspiracy charges if it can be legally proved that companies like ExxonMobil and Peabody Coal spent millions funding climate-change-denying organizations like the Competitive Enterprise Institute and the Greening Earth Society, while internally acknowledging that the science supporting anthropogenic (i.e., human-caused) climate change was a settled issue. That could put Big Carbon in roughly the same position as Big Tobacco was in the early 1990s, when cigarette makers continued to cultivate public doubt about their product’s harmfulness long after they had accepted that it was addictive and deadly. As the tobacco suits lurched forward, documents—as well as some infamous congressional testimony—proved the industry’s bad faith, swaying public opinion against tobacco. It was that, along with the massive wave of lawsuits by all fifty state attorneys general, that helped persuade Congress to bring the cigarette makers under the federal regulatory umbrella.
In the case of energy, anthropogenic climate change has been accepted science since at least 1990—meaning that the coal, oil and gas industries have been on notice for at least twenty-five years that they are making the planet uninhabitable. It was also in the early ’90s that the energy industry began to aggressively push what it pretended was a “counterscience” of climate-change denial, even as it continued to dump a substantial portion of total historic CO2 emissions into the earth’s atmosphere.
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