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Climate Change Litigation is Real, Too

Climate Change Litigation is Real, Too

A federal court in California is considering whether San Francisco and Oakland can maintain their case in court against oil and gas producers like ExxonMobil for knowingly selling a product that has already caused costly damages to their communities.

The case and the others like it filed by nine more communities across the United States have drawn comparisons to those brought against the tobacco industry in the ’90s. Like big tobacco before it, big oil is reeling from an explosive set of internal documents detailing what and when the industry knew about the dangers of its product.

Some have questioned whether those documents amount to “smoking guns” similar to big tobacco’s infamous, “Doubt is our product” internal memo. As a former lawyer for the U.S. Department of Justice who led the prosecution of the tobacco industry for misleading the public about the deadly nature of its product, I believe they do. First, consider the timeline which is an important element in any evidentiary hearing.

1960s
In 1968, the American Petroleum Institute, the oil and gas industry’s largest lobbying organization, received a report it commissioned from the Stanford Research Institute that stated in no uncertain terms that burning fossil fuels was increasing the concentration of carbon dioxide in the atmosphere. This now 50-year-old industry report showed that higher CO2 would result in rising temperatures that could melt the polar ice caps and lead to sea level rise.

1970s
In the years that followed, scientists at major oil and gas producers sent similar warnings to their bosses. For example, in 1977, James F. Black, a scientist in Exxon’s Research & Engineering division, delivered a presentation at the company’s headquarters on the impacts of burning fossil fuels which said, “there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.”

1980s
By the early-80s, the industry was investing in research programs intended to explore it’s CO2 problem. Time and time again, their forays into climate science confirmed Black’s initial findings. As Roger Cohen, a scientist at Exxon put it in a 1981 memo, “it is distinctly possible” that climate change would “produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s population).

Soon thereafter, Exxon’s internal memos reveal that its own scientists had once again reached the same conclusion: “the results of our research are in accord with the scientific consensus on the effect of increased atmospheric CO2 on climate.” Exxon wasn’t alone. Reporters recently uncovered a memo marked “confidential” produced by Shell in 1988 cautioned that, “by the time the global warming becomes detectable it could be too late to take effective countermeasures to reduce the effects or even to stabilize the situation.

When Dr. James Hansen testified before Congress in 1988, about science and the future of climate change, however, the industry’s tone and stance on man-made climate change quickly shifted from one of certainty in private to “uncertainty” in public.

1990s
We don’t have to guess what their objectives were: Another document from 1998 contains a detailed outline of goals under the heading “Victory Will Be Achieved When” all of which centered around fomenting uncertainty about climate science. Nor do we have to guess at their motives: One internal Royal Dutch Shell memo warned of a “class-action lawsuit against the US government and fossil-fuel companies on the grounds of neglecting what scientists (including their own) have been saying for years. . ."

One would be hard-pressed to interpret that as anything but a tacit admission of guilt, or in this case, liability -- which brings us to today. Oil and gas - like cigarettes or asbestos or lead - are products. And like any other products, the companies that produce, market, and sell them are liable for the damages they cause, especially if they mislead the public about their products’ dangers. We now have the evidence to show that oil companies like Exxon and Shell did exactly that. It’s time we hold them accountable and make them pay for the damages.

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