Will fossil fuel companies face liability for climate change?

By Christine Shearer

In a recent article in National Journal, Americans for Prosperity (AFP) President Tim Phillips said there is no question that AFP and others like it have been instrumental in the rise of Republican candidates who question or deny climate science: “We’ve made great headway. What it means for candidates on the Republican side is, if you … buy into green energy or you play footsie on this issue, you do so at your political peril.”

AFP is a section 501(c)(4) organization, meaning it does not have to disclose its donors, but has been tied to significant funding from the Koch Family Foundations - founded by the billionaire Koch brothers of Koch Industries – as well as smaller donations from companies like ExxonMobil. Koch Industries and ExxonMobil are among the largest funders of studies questioning climate change science, often drawn upon by conservative politicians to legitimize their view that regulation of greenhouse gases (GHGs) is not needed because the science is still under debate.

These organizations and their supporters say they are just funding their own independent studies of climate change science. Yet these studies almost all go against observable scientific data to question global warming – so much so that one study funded in part by the Kochs that confirmed a rise in average world land temperature was regarded as an anomaly. Which raises the question: if these studies are largely designed not to shed light on climate change, but to create doubt and confusion to delay greenhouse gas regulations, why is it legal, and do those deliberately spreading misinformation face liability?

The first question, as far as I can tell, apparently boils down to: it’s legal because we have yet to make the deliberate manipulation of science illegal.

Yet while people and companies enjoy the First Amendment right to free speech, legal scholars have argued that right does not extend to influencing people under false pretenses. According to former tobacco industry lawyer Stephen Susman, when it comes to fossil fuel companies and supporters funding their own research on climate change, if “they knew the information they were spreading was false and being used to deliberately influence public opinion—that would override their First Amendment rights.”

This question may soon be playing out in the courts.

History of the science

Research on climate change goes back over a century. Spencer Weart’s The Discovery of Global Warming lays out the long trajectory: from realizing GHGs trap heat and help warm the planet, to identifying them, to tracking GHG emissions into the atmosphere and oceans from the burning of fossil fuels, to measuring the effects.

The research was developed enough that a 1965 report to the Johnson administration, Restoring the Quality of Our Environment, discussed the increase in global carbon dioxide emissions and the possible dire effects. In a 1969 memo, President Nixon’s Democratic adviser, Daniel Patrick Moynihan, wrote that it was “pretty clearly agreed” that carbon dioxide levels were rising fast and would increase the average temperature near the earth’s surface, and that such dangers justified government action.

Attempts to water down the implications of the science soon followed. Science historian Naomi Oreskes and others found that, in 1983, a committee of the U.S. National Academy of Sciences chaired by physicist William Nierenberg reframed the growing consensus around anthropogenic warming as a “nonproblem” that would have limited effects humans could adapt to, as with past changes in human history. Nierenberg was cofounder of the conservative George C. Marshall Institute, and – as documented in Oreskes and Eric Conways’s Merchants of Doubt (2010) – part of a group of government scientific advisers that went from Cold War warriors supporting nuclear weapons to staunch corporate defenders questioning the science on tobacco smoke, acid rain, the hole in the ozone layer, and eventually climate change science, among other issues.

Yet the science marched on. In 1988, NASA scientist James Hansen testified to the U.S. Congress that he believed with 99 percent confidence that substantial global warming was under way, and would rise significantly unless greenhouse gas emissions were reduced. That same year, the United Nations and the World Meteorological Organization created the Intergovernmental Panel on Climate Change (IPCC), a group of about 2,500 international climate scientists who evaluate the research on climate change (which often end up being conservative estimates of likely effects, arguably because of the need for agreement among government representatives).

In 1990, IPCC scientists completed their first assessment report for policymakers, stating they were certain human activities were increasing greenhouse gas emissions and warming, with the second report, in 1995, concluding there was a discernible human influence on climate.

The stage seemed set for an international treaty to limit greenhouse gas emissions.

History of the nonscience

That’s when fossil fuel companies and their supporters sprang in to fund their own research. In 1988 the coal industry founded the Western Fuels Association (WFA), headed by Fred Palmer, who later became vice president of Peabody Energy, the largest private coal company in the world. As outlined in Ross Gelbspan’s The Heat Is On (1998), the WFA actively sought to refute the growing consensus on climate change, stating in its report that “when [the climate change] controversy first erupted at the peak of summer in 1988, Western Fuels Association decided it was important to take a stand.… [S]cientists were found who are skeptical about the potential for climate change.”

A 1998 memo leaked from the National Environmental Trust to the New York Times detailed that a dozen people working for big oil companies, trade associations, and conservative think tanks had been meeting at the American Petroleum Institute’s Washington headquarters to propose a $5 million campaign to convince people that global warming science was riddled with controversy and uncertainty.

Industries like oil and large manufacturers created the lobbying group Global Climate Coalition (GCC) in 1989, with the stated purpose of “cast[ing] doubt on the theory of global warming.” A Freedom of Information Act request unearthed 2001 U.S. State Department documents to the GCC suggesting former President George W. Bush’s decision to pull out of UN international negotiations on climate change had been shaped in part by GCC and Exxon.

The George W. Bush Administration not only resisted GHG regulations, but actively edited government reports to question the science of climate change, one time drawing upon research funded in part by ExxonMobil. As documented by Greenpeace and others, ExxonMobil and Koch Industries went on to become major donors of such research, finding a platform in conservative think tanks and media.

The result? The U.S. perception of scientific consensus about climate change went down in line with the growth of corporate-funded research, particularly among Republicans, even as the science became more clear and the effects more apparent. While the awareness of a consensus is inching back up (although there is still much more confusion than there arguably should be over whether humans are a factor), the U.S. has yet to regulate greenhouse gases, even as the International Energy Agency warns that we may be five years away from being deadlocked into runaway warming.

Social scientists have noted internal barriers to action on climate change – that even people who acknowledge the science may not necessarily alter how they live to match that knowledge. In other words, accepting the consensus on climate change science might not have been enough for swift, immediate action.

Yet the evidence also seems clear that comprehensive understanding of the issue for the nation was muddled, and deliberately so: in 2009, an internal Global Climate Coalition document was leaked to the New York Times – a primer written in 1995 for coalition members admitting that the “scientific basis for the greenhouse effect and the potential impact of human emissions of greenhouse gases such as carbon dioxide on climate is well established and cannot be denied.”

Yet we are now at the stage where denying climate change, or at least the human factor, is apparently a prerequisite for being the Republican nominee for President, as Phillips has bragged. This stance would be completely unacceptable if not for the studies funded by fossil fuel industries and supporters. And it has been disastrous for creating U.S. policies to address climate change.

Liability?

In 2008, the small Inupiat nation and city of Kivalina, Alaska, filed a lawsuit against ExxonMobil and 23 other fossil fuel companies for federal public nuisance – the damage of their homeland, which will be uninhabitable within a few decades, as sea ice no longer sufficiently buffers the barrier reef island against erosion from fall storms. Their claim argues that Kivalina has an identifiable, discrete harm, traceable to greenhouse gas emissions, of which the defendant companies are among the world’s largest contributors. They seek damages: their relocation costs.

Kivalina also charged a smaller subset of companies with secondary claims of conspiracy and concert of action for creating a false debate about climate change science. In other words, these companies knew they were contributing to harm, but rather than change their practices, they instead funded a false debate about climate change science.

The lawsuit was dismissed one year later as a “political question” – the district court ruled that climate change was a matter for the executive and legislative branches, not the judicial branch, which is how three prior global warming public nuisance cases had been ruled. The judge also denied Kivalina’s legal standing to bring the suit. The secondary claims involving the misinformation campaigns of defendant companies went unaddressed.

Kivalina appealed the decision, with oral arguments heard in November of this year. If the claim is allowed to move forward, it could reach the discovery phase, which may unearth more documents similar to that leaked to the New York Times, suggesting deliberate intent to deceive.

Defendant companies argue that climate change is not a matter for the courts – the problem is too big, and we are all responsible. Yet we have not all embarked on multi-million dollar campaigns to fund our own research and prevent change. It is these secondary claims that could be the crux of establishing whether fossil fuel companies will eventually bear liability for harm from greenhouse gas emissions. As prior cases involving lead, asbestos, and tobacco lawsuits show, people seem to think it is one thing to do your own research, but it is another to deliberately deceive people, contributing to widespread harm primarily to retain profits.

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