California For the Win

I took last week off from the newsletter because I've been working so hard on our ongoing series about the global criminalization of climate protest. So far, we've run stories on the reasons so many corporations are pushing to suppress free speech, Canada's use of "redwashing" right alongside suppression of First Nations protest, Australia's state-by-state criminalization of protest, a profile of climate activist Disha Ravi and her experience with sedition charges in India, Vietnam's use of tax evasion charges to jail climate activists, and the global think tank network that's vilifying protestors and laying the groundwork to criminalize protest. Still to come are stories on the backlash against climate protest in Uganda, Nigeria, Mozambique, and several stories on how this trend is shaping up in (and in many ways shaped by) the United States. If you haven't checked it out yet, you can do that here, on our brand-new website, which finally (finally!) pulls all the audio and print stories together in one places and provides easy access to the primary documents supporting all of them, too.

While I've been busy with all that, the climate news has been overwhelming. From extreme weather events like the tragic loss of thousands of lives in Libya and the deadly flash floods in Greece to the continued greenwashing of Climate Week to the blockbuster Wall Street Journal exposé of yet more climate obstructionism from ExxonMobil, well into the 2000s, it's been a helluva month so far and it's only half over.

Amidst all of the outrageously bad news, a stream of good news from California has been piercing through the ol' news feed. In the past week, California's government passed climate disclosure requirements—a HUGE deal amidst all the anti-ESG tomfoolery, because even if the SEC walks back its climate disclosure requirements, California is requiring disclosure of Scope 1, 2, and 3 emissions (that's all of 'em!), and because of its size, that means a de facto nationwide standard; a contracting shift that enables large-scale offshore wind development in the state; and legislation mandating that oil companies (rather than taxpayers) pay to deal with abandoned and idle wells.

And then late on Friday, after hinting at it for A WHILE, the state joined the growing list of climate liability suits with a whopper, accusing the world's five largest oil and gas companies (Exxon Mobil, Shell, BP, ConocoPhillips, and Chevron), as well as the American Petroleum Institute and 100 as-yet-unnamed entities that include operatives, think tanks and front groups that contributed to the spread of disinformation about climate change, of a litany of offenses, including public nuisance, misleading advertising, misleading environmental marketing, failure to warn, negligent product liability...the gang is all here.

Not at all to downplay the states, cities and counties that moved earlier on this—cases in Rhode Island, Massachusetts, Hawaii, Baltimore, Colorado, Puerto Rico and more all walked so that California could run, and none of those cases would have been possble without the first round of cases a decade or so (Kivalina, New Orleans, and AEP), not to mention all the journalism and attribution science that has continued to build up the evidence base for these cases over the past decade. What's exciting about this case is that precisely because it is coming on the heels of those others, it's taken the strengths of all of them—the fraud claims of Massachusetts AND the liability claims of Rhode Island, Hawaii, et all AND the collaborative enterprise of the Puerto Rico climate RICO—and rolled them all into a super-case. And then of course, California is massive: its the nation's most populous state, the world's fifth largest economy, and it faces every climate impact there is.

It's also important to note that California's case is being filed after the Supreme Court cleared the jurisdictional hurdle that's kept these cases ping-ponging around the appellate circuit for the past five or so years when it opted not to hear oil companies' appeals on this front in the Boulder case, and all but told the fossil fuel defendants not to bring them that argument again. That ruling got all 30-odd cases moving towards discovery—the period in civil cases when documents are subpoenaed and current and former staff are deposed—an exercise oil companies have been trying to avoid at all costs.

As a native Californian, I've spent the past several months in a near-constant panic about my home state, and my family who are all still there. I left after spending two straight summers being smoked-in by wildfires (not two days, two entire summers) and evacuating three times. Never did I think flooding would be a primary concern, and yet this year I've worried about family back home facing not only floods but also a freak hurricane. So, on a personal note, it's encouraging to see the golden state fighting back. Especially because California's laws and lawsuits have the potential to shape federal policy, and yet it's been ceding that influence to Texas far too often lately.

And as a climate litigation nerd, it's fascinating to see all the strategies I've been following the past several years come together in this Avengers-style case. People often forget that California is also one of the country's largest oil and gas producers, so this case will be very interesting to watch from that perspective too; Chevron, one of the five named oil defendants in the case, is headquartered in California and its attorney, Ted Boutrous of Gibson Dunn, has been the primary spokesperson for the oil company defendants in climate cases that Chevron is involved with. A legendary First Amendment attorney, Boutrous often argues that anything his client has ever said about climate change—even if and when it was knowingly misleading—was in the interest of shaping policy and is thus protected under the First Amendment. He's also argued in several cases that the climate-related complaints filed against his client are SLAPP suits (strategic litigation against public participation) intended to punish them for their opinions on climate change.

The API has made similar claims, as has Exxon, both of which have alleged some sort of conspiracy against the industry because the lawyers bringing these cases sometimes talk to each other (a perfectly normal and not at all illegal practice). In a statement to The New York Times, Ryan Meyers, general counsel of the American Petroleum Institute, said: “This ongoing, coordinated campaign to wage meritless, politicized lawsuits against a foundational American industry and its workers is nothing more than a distraction from important national conversations and an enormous waste of California taxpayer resources. Climate policy is for Congress to debate and decide, not the court system.”

Sure it's a pretty standard industry statement, but let's unpack what Meyers is arguing here because it's illustrative of the industry's approach to accountability more broadly, and the various legal arguments it plans to deploy in these cases:

• "Ongoing, coordinated campaign." This is very specific  language that lends itself to accusations of racketeering. One of the bars a RICO claim has to meet is proving that an "enterprise" has coordinated multiple entities to take part in an illegal or unethical act and that the offending activity has been ongoing. I for one would not be at all surprised to see the industry attempt to file a RICO case against attorneys and nonprofits involved in these cases (they've already tried in Texas, and RICOs have been filed against climate protestors as well; plus let's not forget the infamous Chevron RICO against Steven Donziger and various Indigenous and Ecuadorian plaintiffs, related to their judicial win against the company in Ecuador).
• "Meritless, politicized lawsuits." This is language the oil company defendants and trade groups have been using all along. By leaning particularly on the idea that the suits are political attacks, they hope to strengthen their argument that these are SLAPP suits and that they violate corporate free speech rights.
• "A foundational American industry and its workers." A classic talking point that the industry has really been emphasizing of late--tying fossil fuels to American identity and emphasizing how great it is for workers. We've covered why the connection to patriotism is so clutch for the industry before. And as for its commitment to workers, let's talk about how the industry treated workers during Covid, shall we (not to mention the fact that part of the liability loophole it sought to smuggle into Covid relief packages barredworkers from Covid-related claims)? Or how it continues to underreport worker deaths and look away as companies opt to occasionally gas workers rather than update their monitoring equipment. Some real worker solidarity there!
• "Climate policy is for Congress to debate and decide, not the court system." This serves the dual point of confusing people about the focus of these suits—not to set climate policy but to hold fossil fuel companies accountable for the added cost that their delay has heaped onto state and local governments and, thus, taxpayers—and once again trying to argue that these are federal not state issues.

The California suit also takes a novel approach to damages, again informed by the suits that have come before it. Rather than peg damages to a particular extreme weather event, which can be tough to back up in court (in much the same way that one person's cancer is hard to blame on only one factor, extreme weather events are hard to connect solely to climate change, although attribution science can often reveal what percentage of an event's damage is attributable to climate change and there is growing consensus around the idea that climate change increases the likelihood of certain events as well as the resultant damage), the complaint seeks to create a fund that would be used both to deal with extreme weather events and to help the state and its residents adapt to and mitigate climate change. Again, all of those costs are currently being borne by taxpayers, this suit seeks to require the fossil fuel companies to foot their fair share of the bill. And it follows a model that's already been successful in California, where a $305 million abatement fund for lead paint was created in 2019.

Richard Wiles, executive director of the Center for Climate Integrity, which has been involved in most of the U.S. climate suits, called the California filing a "watershed moment" for U.S. climate litigation and "an unmistakable sign that the wave of climate lawsuits against Big Oil will keep growing."

In other situations where an industry has faced multiple suits from states and local jurisdictions—tobacco and opioids, for example—companies have eventually decided that fighting so many large legal battles at once is worse for business than settling. Particularly given how much they seem to want to avoid discovery, it's possible the oil companies will go that route as more and more cases are filed. It's hard to imagine that happening, but it's even tougher to envision them going along with a request that's front and center in California's suit: a jury trial.

This Week's Climate Must-Reads

• Electric Vehicles Have Become a Weapon in the War on Autoworkers. The auto industry is absolutely planning to blame the shit it's been planning to pull on workers all along on the "green transition." It's incumbent upon climate advocates to push back against that narrative, and stand in solidarity with autoworkers. The always great Kate Aronoff has everything you need to know about the UAW strike and EVs in this story for The New Republic.
• How Much Discomfort Is the Whole World Worth? This excellent piece in the Boston Review from Kelly Hayes and Mariame Kaba argues for compassion and coalition building on the left, noting that "movement building requires a culture of listening—not mastery of the right language."
• The Climate Crisis Could Mean the Twilight of the American West. In an excerpt from his book River Notes in Rolling Stone, leading anthropologist Wade Davis looks at how the taming of the Colorado River in the 1960s helped shape the nation and what the historic drought that's draining the river and revealing the limits of a man-dominates-nature approach could mean.
• Offset Market Hit by Fresh Allegations of False CO2 Claims [Study] In a new report from the Berkeley Carbon Trading Project, housed at the UC Berkeley Goldman School of Public Policy, 14 different researchers evaluated REDD+ credits, which represent roughly a quarter of global carbon offsets, and found them to be erm bullshit. In her excellent write-up of the study for Bloomberg, Natasha White quotes lead author Barbara Haya with a one-liner that really sums it up: "The verifiers aren't doing their job."
• Your New Apple Watch Won't Be Carbon Neutral. In this piece for Wired, Gregory Barber grappled with an obvious, yet often avoided, topic in the climate space: consumption and the idea that buying slightly better stuff is a climate solution.