March 08, 2018
One of the craziest – and potentially far-reaching and harmful – lawsuits in recent memory is wending its way through our legal system. Filed by several California and New York cities and counties, the legal action asserts that major oil companies are causing rising seas, floods, repeated climate and weather disruptions, and an "existential threat” to humanity and our planet.
The oil companies have known about these risks for decades, the litigants continue, but failed to disclose the information in annual reports, stock offerings and other documents. The litigants seek compensatory damages, abatement of the alleged threats, attorneys’ fees, punitive damages and disgorgement of corporate profits. As my article explains, it is a classic shakedown … by cities and counties that have collective unfunded pension obligations in the hundreds of billions of dollars.
Which aspects are most fraudulent? The cities’ lawsuits, junk science or bond offerings?
The ultra liberal enclaves of New York City and San Francisco, Oakland, Santa Cruz, San Mateo, Marin, and Imperial Beach, California all claim to be deeply worried about manmade climate cataclysms. They detest petroleum, oppose pipelines, fracking and onshore and offshore drilling, and strongly support renewable energy and expensive electricity: already 17-18¢ a kilowatt-hour for families, rich and poor.
They also have huge government pension fund shortfalls(NYC alone has a pension debt of some $65 billion), and are suing BP, ExxonMobil, Chevron, ConocoPhilips and Royal Dutch Shell. They’re gunning for a collective litigation windfall of several hundred billion dollars, to help bail them out. (They’d probably sue coal companies, too, but the Obama era war on coal drove many into bankruptcy.)
Their fundamental cause of actionclaims greenhouse gases (primarily carbon dioxide) from burning oil and natural gas are disrupting Earth’s climate and weather, causingheat waves and frigid winters, floods and droughts, more frequent and intense hurricanes, melting ice packs and rising seas – costing the cities billions of dollars for repairs and adaptation. The calamities pose an "existential threat” to the cities, humanity and our planet. If they’re not happening already, they will within decades, the litigants assert.
The oil companies have known about these risks for decades, the cities and counties continue, but hid the information from the public and failed to disclose it in annual reports, stock offerings and other documents. They are thus guilty of fraud, negligent and deliberate failure to warn, product design defects, trespass with dangerous pollutants, and being a public and private nuisance.
The litigants seek compensatory damages, abatement of the alleged nuisance, attorneys’ fees, punitive damages and disgorgement of corporate profits. NY MayorBill de Blasioalso wants his city to divest from fossil fuels (which generate revenues for pension funds, and invest more in wind and solar, which require subsidies) and "bring the death knell” to the entire oil industry. It’s a classic shakedown.
Nice companies ya got there. Sure’d be a shame if something was to happen to ‘em.
The ironies are delicious – ripe for being exploited in courtrooms, Congress and courts of public opinion.
Start with the fraud allegations. Much to the chagrin of scientists who say humans are not causing climate cataclysms, these oil companies’ reports and press releases have frequently said fossil fuel emissions are a real concern, and the companies haven’t funded climate chaos skeptics for years. Where’s the fraud?
Compare that to Marin County, whose court pleadings assert a 99% risk of catastrophic storm surges and flooding, because of oil and gas combustion. San Mateo County cites a 93% likelihood of climate-related surges, floods and sewer overflows.San Francisco claims an "imminent risk of catastrophic storm surges.”
But SF’s 2017 municipal bond offering downplayed the risks, saying it is "unable to predict whether sea-level rise or other impacts of climate change or flooding will occur.” Marin and San Mateo made similar statements to current and prospective bond investors. Ditto for other litigants and climate chaos claims. Their panicked concern about devastating climate impacts has suddenly vanished.
Courts don’t like forked tongues, prior inconsistent statements, duplicity or fraud. Neither do investors or SEC commissioners. Watching this lawsuit vs. bond offerings tar baby schizophrenia play out in court will be entertaining, and perhaps even one more reason to dismiss the frivolous lawsuit with prejudice.
It’s also ironic that the litigants claim the oil companies are causing local, state, national, international and planetary havoc – but wanted to sue instate courts, where they hoped to get friendlier judges and juries than they might in a federal venue.Boulder, Colorado’scity attorney also promoted that approach, in suggesting that this equally liberal town join the litigation, to "propel change” and "put a price on carbon.”
However, a Federal District judge has ruledthat the case must be tried in federal courts, since the claims "depend on a global complex of geophysical cause and effect involving all nations of the planet.”
Add to that the unrelenting efforts by these cities, counties and states, climate activists and modelers, and various politicians to stifle debate, assert that97% of scientists agree that climate change is manmade and dangerous, and even useracketeering laws and Spanish Inquisition tactics against climate chaos skeptics – while profiting handsomely from climate hysteria.But now they want to haul oil companies into court, where they must present real-world evidence,prove their case against fossil fuels, reply to weighty evidence that contradicts their assertions, and endure brutal cross-examination by defense attorneys.
It will be interesting to watch them try to silence defense witnesses and keep inconvenient evidence out.
Two new books, by Marc Morano and Gregory Wrightstone, offer superb laymen’s guides to the real science of climate change today and throughout Earth’s long history – and how difficult (nigh impossible) it will be for the litigants to prove their allegations: That today’s climate fluctuations are unprecedented. That they pose an imminent threat to people and planet. That humans and (plant-fertilizing) carbon dioxide now control climate and weather processes, replacing the sun and other powerful natural forces that did so previously. That they can somehow separate and quantify human versus natural influences and impacts.
The cities and counties also want the courts to focus only on the alleged social, environmental and economiccosts of carbon-based fuels and carbon dioxide emissions. They want no mention of the enormousbenefits – to the cities, counties and their citizenry: lights, heat, clothing, transportation, communication, healthcare, employment,crops, parks, forests and much more. Indeed, a comprehensive, honest analysis shows thebenefits of carbon exceed their costs by at least 50:1, to as much as 500:1.
The litigants demand that the targeted companies "disgorge” their profits. Perhaps the cities should first disgorge the trillions in benefits they received from using the companies’ products for the past century.
In the end, the case against the oil companies rests on bald assertions, selective evidence,revised and "homogenized” data, an assumption that industrialization caused modern global warming – and above all, computerized climatemodels that have been wrongabout every temperature and other prediction. This may work in the "mainstream” media, universities and other liberal circles. It shouldn’t in a court of law.
As "logic of science” expert David Wojick observes, climate models are basically garbage in-garbage out, or GIGO: Input the assumption that rising CO2 levels cause climate change; output increasingly disastrous climate disruption scenarios. The process also involves constantcircular reasoning: If all the drivers of climate change are assumed to be human-caused, all the observed changes must also be caused by humans.
That is how the Intergovernmental Panel on Climate Change operates – and why we have so many disaster scenarios and demands for an immediate transition to renewable energy. It helps explain why these litigants oppose drilling, fracking and pipelines within their borders – but voice few concerns about the impacts of wind and solar installations on wildlife, habitats, and metals mining and processing in distant lands … or about the land, fertilizer and water demands, and CO2 emissions, associated with biofuels.
Two principles seem to guide the litigants: Whatever happens today or in the future – even if it happened many times in the past – is the oil companies’ fault, and it’s going to be catastrophic. Misrepresenting facts or failing to disclose relevant evidence violates anti-fraud laws – unless the cities and counties do it.
That is absurd. A lot is riding on these baseless climate lawsuits – and not just for the oil companies.
Every city, county, state, farm, manufacturer, hospital, business, worker and family whose operations, technologies, living standards, investments, pensions and hope for the future depend on the energy and petrochemicals that oil companies provide will be harmed by a court finding in favor of these litigants.
Every one of them should follow this case closely – and get involved deeply and personally in this crazy lawsuit, by intervening, providing evidence and expert witnesses, submittingamicus curiae briefs, and helping citizens, journalists and elected officials understand what is really at stake here. (Hint: It’s not Earth’s climate, which has changed often throughout history – beneficially, benignly or detrimentally.)
Paul Driessen is senior policy advisor for the Committee For A Constructive Tomorrow and author of articles and books on natural resource issues. He has degrees in geology, ecology and environmental law.
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