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These bills aim to make polluters pay

Climate superfund legislation is gaining traction in state legislatures across the country. How do the bills fit into the broader movement to hold Big Oil accountable?

EXXONKNEWS

JUN 27

Emily Sanders is senior reporter at ExxonKnews.

As communities across the United States grapple with the rising costs to protect residents and infrastructure from the worsening impacts of climate change, some state legislators are targeting a potential new source of resilience funding: fossil fuel companies.

Sometimes called “polluter pays” bills or “climate superfund” bills, a new wave of state legislation aims to make oil companies bear a portion of the expenses necessary to adapt to climate impacts and recover from climate disasters fueled by those companies’ greenhouse gas emissions. The bills are quickly gaining momentum in statehouses: Vermont passed one into law in May, another in New York awaits Governor Kathy Hochul’s signature, and similar proposals are under consideration in California, Massachusetts, and Maryland.

Oil and gas companies have generated the majority of the world’s climate pollution, the bill sponsors argue, and therefore they should help pay for the damage that pollution is inflicting on communities. While each state’s legislation has unique features and different mechanisms to determine how much oil and gas companies would pay, they all draw inspiration from the federal Superfund program, first enacted in 1980 and administered by the Environmental Protection Agency, which makes polluters pay to clean up hazardous waste they’ve dumped into the environment.

State climate superfunds established by these bills would function similarly by making fossil fuel companies pay for a portion of the damages caused by their greenhouse gas emissions.

“States and municipalities are suffering enormous costs from the damage associated with climate change and the money they have to spend now to prepare for the consequences they're going to face in the future, at the same time as fossil fuel industry actors are posting record profits from creating these harms,” said Martin Lockman, climate law fellow at the Sabin Center for Climate Change Law and associate research scholar at Columbia Law School. While the superfund bills would not cover the full amount states will spend on climate adaptation, he said, communities “are looking for any tools that they have available to make sure that the people who are profiting from causing them harm pay for [that] harm.”

So how exactly do the bills work, how do they interact with the growing number of distinct state and local lawsuits seeking to hold Big Oil accountable for climate deception, and what challenges will they face? Here’s what you need to know.

How climate superfund bills work

All of the currently proposed climate superfund bills would assess a dollar figure that companies owe to the fund based on the amount of emissions attributed to the fossil fuels they sold over a set period of time: 2000 to 2018 in New York’s case, or 1995 to 2024 in Vermont’s for example. The costs of those emissions, or how they are proportioned among companies, are calculated using attribution science — a growing field also tapped for climate accountability lawsuits. Those calculations rely on companies’ self-reported data to the Securities and Exchange Commission (SEC).

“It's looking at something they already did, and saying ‘this had a negative effect and now you have to clean up the mess you made,’” said Maggie Coulter, senior attorney at the Center for Biological Diversity, a group that supports a climate superfund bill in California that was recently shelved by its author but could be reintroduced later in the year.

Some of the bills direct a state agency to conduct a cost assessment of the climate harms companies’ emissions caused during a set time frame. In Vermont’s case, the state’s Agency of Natural Resources will have until the start of 2027 to conduct that assessment and determine each company’s appropriate share of the costs.

Those costs could include some portion of the estimated $1 billion response and recovery costs incurred after major floods devastated Vermont last summer, or the price of fortifying roads, bridges, and floodplains to lessen the damage caused by rain storms intensified by climate change. The agency will also help determine which resiliency programs — programs that could help municipalities, businesses, and farms in Vermont adapt to climate impacts — will be covered.

The law “is a common sense manifestation of a very well-established principle of American environmental law, which is that the polluter pays,” said Christophe Courchesne, assistant professor of law and director of the Environmental Advocacy Clinic at Vermont Law School, which voiced its support for the bill before it passed. “It's not new, even as the application of this policy to climate damages is new, and is an extremely important concept that we certainly hope will be a model to other states.”

Other bills have already set a total cost that would be divided up by companies — like New York’s, which would require the oil majors to pay into a $75 billion fund that could be used for projects such as air conditioning schools or upgrading roads, bridges, subways, and stormwater drainage systems to account for more extreme weather. Still, that $75 billion is nowhere near the total costs New York faces for climate adaptation; in 2021, the city estimated it would cost $100 billion just to “recalibrat[e] our sewers for storms like Ida.”

Proponents of the bills say their popularity reflects growing public demand for polluters to pay; polling last year found that 70% of likely voters supported making fossil fuel companies pay for climate disasters including wildfires, droughts, and floods. “The science is more than clear on the outsized impact these companies have had on the climate crisis,” said Cassidy DiPaola, communication director for Fossil Free Media, one of the groups behind that poll. “It's time for them to pay their fair share, and this is one step in the right direction, but still not nearly enough.”

“Very complimentary, parallel tracks”

The bills come at the same time that dozens of state and local lawsuits to hold Big Oil accountable for climate fraud and damages are steadily advancing through the courts. So how do the two mechanisms interact?

The two tracks have some fundamental differences and aim to accomplish different things. Unlike the bills, the lawsuits center on disinformation, not pollution. They accuse the companies of engaging in deceptive behavior, citing evidence that the fossil fuel industry has misled the public for decades about the harms their products cause. Through the courts, the cases aim to stop companies from lying to consumers and hold them accountable through a range of remedies, including paying for the damage their deception has caused.

Lawsuits can also help address past disinformation by forcing defendants to set the record straight. A Minnesota lawsuit brought against Exxon, Koch Industries, and the American Petroleum Institute under the state’s consumer protection laws, for example, seeks to make the companies “disclose, disseminate, and publish all research previously conducted directly or indirectly… that relates to the issue of climate change,” and “fund a corrective public education campaign in Minnesota relating to the issue of climate change, administered and controlled by an independent third party.”

Similar remedies came out of lawsuits brought against the tobacco industry by U.S. states and territories for misleading consumers about the connection between smoking and cancer. Through the 1998 Master Settlement Agreement, major tobacco companies were made to fund the Truth Initiative, a public education campaign that has drastically reduced youth smoking rates.

Discovery, the process of obtaining evidence for trial, can also produce internal company documents that shed further light on the industry’s deception about its products for legislators and the public — and can help inform a response. Such documents were obtained through litigation against the tobacco and opioid industries and made publicly available.

The climate superfund legislation, on the other hand, “does nothing to prevent [companies] from continuing business as usual if they want to,” said Coulter. “It's just saying that the business that you conducted has caused damage and you need to pay for that.” That’s why the bills and lawsuits, she emphasized, are “very complimentary, parallel tracks,” which together can both make the fossil fuel industry pay for a share of its pollution and bring an end to continued deceptive acts.

A similar dual strategy was applied in California, where the California Childhood Lead Poisoning Prevention Act of 1991 taxed manufacturers of products containing lead to fund evaluations and medical services for children who were exposed. In 2019, 10 California cities and counties were still able to recover a court settlement from lead paint manufacturers after they sued the companies under public nuisance claims.

“This is how our democracy works,” California’s Attorney General Rob Bonta recently told Politico when asked about the relationship between California’s proposed superfund bill and the accountability lawsuit his office brought against Big Oil companies last year. “Different leaders elected to do their jobs think about the authority that they have, the jurisdiction that they own, and the action that they can take to solve a problem that affects their constituents.”

Legal battles ahead

The bills will likely implicate many of the same major oil companies facing climate deception lawsuits in state courts, including Exxon, Chevron, Shell, and BP. The industry’s lead trade association, the American Petroleum Institute, has already expressed its strong opposition to the bills, calling them “a punitive new fee” that “represents yet another step in a coordinated campaign to undermine America’s energy advantage and the economic and national security benefits it provides.”

Legal experts expect API and others to challenge the laws in court.

In March, API sent a letter to Vermont lawmakers claiming that the state's bill “retroactively imposes costs and liability on prior activities that were legal” and “violates equal protection and due process rights by holding companies responsible for the actions of society at large.”

But experts and advocates refute those claims. “This bill is premised on a well-established, reasonable approach to assigning liability for pollution harms,” said Courchesne, of Vermont Law. “These issues around due process and the retroactivity of liability have been litigated and those laws have been upheld.”

Big Oil’s public communications have sought to shift the blame for climate change to consumers for years, despite growing evidence that the companies intentionally mislead the public about the harms their fossil fuel products cause.

While the superfund bills don’t rely on that evidence of deception like the lawsuits do, there is still plenty of precedent for laws that hold producers liable for their pollution, Lockman explained. “If you buy a product, and the company that made that product was dumping toxic chemicals into a river and killing off species, is the consumer responsible for that?” he asked. “Generally, as a society and a legal system, we’ve decided that it’s OK to hold the most immediate actors responsible for the pollution they’re causing.”

Thanks for reading ExxonKnews!

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(651) 296-3353 or 1-800-657-3787 | TTY: (651) 297-7206 or 1-800-366-4812

http://www.ag.state.mn.us/

July 7, 2021

Attorneys General in New York & Five Other States File Brief in Support of Juliana :{:{v. United States While Plaintiffs Oppose Attempt By Republican Coalition to Intervene}:

no lnx

For immediate release July 7, 2021

Contacts:

Julia Olson, 415-786-4825, julia@ourchildrenstrust.org

Andrea Rodgers, 206-696-2851, andrea@ourchildrenstrust.org

Philip Gregory, 650-278-2957, pgregory@gregorylawgroup.com

For interviews with youth plaintiffs, email beth@ourchildrenstrust.org

Attorneys General in New York & Five Other States File Brief in Support of

Juliana v. United States While Plaintiffs Oppose Attempt By Republican

Coalition to Intervene

EUGENE, Ore. – Attorney General Letitia James of New York on Tuesday filed a “friend

of the court” brief in support of the landmark constitutional climate case Juliana v. United

States, spearheading a wave of support from states that also include Delaware JENNINGS, ELLISON Hawai‘i,

http://ag.hawaii.gov/ SHIKADA

Minnesota,ELLISON

Oregon,

Attorney General Ellen F. Rosenblum Oregon's 17th Attorney General A former federal prosecutor and state trial and appellate judge, Ellen Rosenblum was first elected to a four-year term as Oregon's 17th Attorney General in November, 2012. She was re-elected to a second term in 2016 and to a third term in 2020.

and Vermont.TJ DONOVAN https://ago.vermont.gov/

https://en.wikipedia.org/wiki/Attorney_General_of_Delaware

Kathy Jennings

In their amici curiae motion, the six Democrat-led states noted that the

wide-ranging effects of climate change -- “including the costs of combating rising

sea levels, health risks posed by rising temperatures, and threats to States’ food

and water supplies, among others -- implicate far broader quasi-sovereign

interests in the health and well-being of state residents than those noted by

proposed intervenors.”

Also on Tuesday, attorneys from Our Children’s Trust, which represents the 21 Juliana

youth plaintiffs, filed a brief opposing an earlier attempt by Alabama, Alaska, Arkansas,

Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North

Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia to join the

Biden administration in defending the case.

In June, the coalition of Republican

attorneys general said it wants to “participate in settlement negotiations” to “object to

any proposed settlement” and threatened to go all the way to the Supreme Court to

keep the youths’ case from going to trial.

In their filing opposing the attempt by some Republican-led states to intervene, the

plaintiffs’ attorneys point out that those 18 states are suffering billions of dollars in

losses related to climate impacts from extreme heat, sea level rise, and extreme storm

events, and any economic losses to the fossil fuel sector are far outweighed by severe

economic harm from the climate crisis.

“What the 18 Republican attorneys general seek is unprecedented,” said Julia

Olson, chief legal counsel of Our Children’s Trust. “They want to be allowed to

come into the case to fight the youth and prevent their claims from going to trial or

be resolved through settlement, but they refuse to waive their sovereign immunity

under the U.S. Constitution, which means they would not be subject to any orders

of the federal courts. They essentially want status as interlopers, with all the

privileges to participate as a party-defendant and fight these kids, but with no

responsibility or accountability. What they seek only hurts children in their own

states too.”

The Juliana constitutional rights lawsuit, filed in 2015, argues that affirmative actions by

the federal government under both political parties directly contributed to the climate

crisis – including creating a national fossil fuel-based energy system that is a substantial

factor in causing the plaintiffs’ injuries. By doing so, the plaintiffs argue, the government

has knowingly violated their constitutional rights to life, liberty and property, the public

trust, and equal protection of the law.

The Juliana plaintiffs’ amended complaint -- which the coalition of Republican attorneys

general is attempting to block -- is focused on winning a declaratory judgment that the

nation’s fossil fuel-based energy system is unconstitutional, much like the plaintiffs in

Brown v. Board of Education argued the public school system of segregation was

unconstitutional.

In June U.S. District Court Judge Ann Aiken ordered attorneys for plaintiffs and for the

Department of Justice to meet for a settlement conference with Magistrate Judge

Thomas Coffin, calling it “a tremendous opportunity” to address the climate “crisis” and

not just a “ministerial step.” Those talks are underway.

If Judge Aiken grants the motion to amend, and the settlement process is unsuccessful,

the case would be able to move forward in the trial court on the question of whether the

federal government’s fossil fuel-based energy system, and resulting climate

destabilization, is unconstitutional.

https://www.drillednews.com/post/alleging-consumer-fraud-minnesota-sues-exxon-koch-and-api-for-climate-change-deception

june 24

Minnesota on Wednesday joined the growing number of states and municipalities seeking damages from the fossil fuel industry for knowingly deceiving consumers about climate change and its impacts. But Attorney General Keith Ellison is charting a different and potentially groundbreaking legal course from those lawsuits, by suing ExxonMobil, Koch Industries, and the American Petroleum Institute :{under state laws that prohibit lying to consumers.:(style="background-image:initial;background-position:0px 0px;background-size:initial;background-repeat:initial;background-attachment:initial;background-origin:initial;background-clip:initial;margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:

To date the majority of this generation of climate suits are nuisance cases. They allege that fossil fuel companies’ efforts to misinform the public on climate change successfully delayed for decades any regulations and other actions to slow or stop it, creating the need for billions of dollars in mitigation costs that municipal and state governments could otherwise have avoided. In those cases, which include among others suits filed by the cities of Oakland and San Francisco, Calif., and Boulder, Colo.,, the plaintiffs are seeking damages: They want fossil fuel companies to pay their fair share of the cost of climate adaptation.

The Minnesota case is different in a few key ways:

First, there are two of the defendants, Koch Industries and the American Petroleum Institute, or API, the largest fossil fuel industry trade group. The nuisance suits have concentrated on companies with refineries and pipelines, such as Exxon. This suit, however, focuses on knowingly and actively deceiving the public— it is targeting the refiners and distributors not just of fossil fuel products, but of climate change denial, an arena where both API and Koch have been major players.

In 1998, API convened a group of industry stakeholders to draft the :{blueprint of the industry’s climate disinformation strategy:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: in an effort to keep the U.S. from committing to binding emissions reductions targets under the first international climate agreement, the Kyoto Protocol. Ten years later, ahead of the pivotal 2008 climate conference in Copenhagen where nations hoped to agree on a strong successor to the Kyoto pact, API spent at least $75 million with one PR firm alone, Edelman, to work against climate action. And that was:{ just one contract in one year.:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}::{ :(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:

Koch Industries, along with co-owners and brothers Charles and the late David Koch themselves, have for decades funneled hundreds of millions of dollars into think tanks and front groups that spread climate disinformation. The long list of examples ranges from :{the work of Patrick Michaels,:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}::{ :(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:the Cato Institute’s director of the Center for the Study of Science to the :{“documentary” Green Tyranny:(style="background-image:initial;background-position:0px 0px;background-size:initial;background-repeat:initial;background-attachment:initial;background-origin:initial;background-clip:initial;margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: (which originally aired on Fox News), as well as one of the :{earliest convenings of climate deniers,:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: “Global Environmental Crises: Science or Politics?” which :{the Cato Institute hosted:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: in 1991.

“This complaint does not seek to hold these companies accountable for climate change. It seeks to hold them accountable for violating Minnesota’s consumer protections,” said Leigh Currie, Minnesota’s assistant attorney general at a press conference announcing the suit. This is significant because, the complaint’s reliance on state consumer protection laws may help it avoid some of the :{jurisdictional issues that the nuisance cases have faced. :(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:

And then there’s the injunctive relief part, which makes this case unique, and a really interesting one to watch moving forward. Injunctive relief is legalese for a court order that forces some person or entity to stop doing something. In this case, Ellison has asked for injunctive relief to stop deception, a corrective public education campaign in Minnesota on climate change, and full disclosure of all internal research the three defendants have conducted on the issue of climate change.

“This was a 30-year effort to defraud consumers in Minnesota about climate change and the role of fossil fuel products in it,” Ellison said at the press conference, illustrating his point with a series of images of internal industry documents revealing what they knew and when.

Several other speakers at the press event connected the fossil fuel industry’s climate denial efforts to the tobacco industry’s deception of the public about the harms of smoking, including Doug Blanke, a former state prosecutor who now directs the :{Public Health Law Center:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: at Mitchell Hammond School of Law. When he worked in the Attorney General’s office, Blanke spent much of his time onlawsuits holding Big Tobacco accountable. “We were combatting the lies of the tobacco industry — lies that echo through every page of today's lawsuit,” he said. “These strategies are ripped straight from the pages of tobacco’s playbook.”

Minnesota’s suit is also seeking restitution and disgorgement of profits, essentially a handing over of ill-gotten gains. The complaint does not request a specific amount, but it compares the billions of dollars in profits earned by oil companies from the 1980s to the early 2000s, with the billions of dollars of climate-related costs borne by Minnesota residents, stating, “If Defendants had not misled the public to pad their own pockets, Minnesota would not have already incurred such large costs because of climate change and would not be facing such dramatic future costs.”

Flooding has increased dramatically in Minnesota over the past decade. :{According to the Environmental Protection Agency:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:, over the last half century, average annual precipitation in most of the Midwest increasing by 5 to 10% with rainfall during the four wettest days of the year has increased about 35%. The :{Minnesota Pollution Control Agency notes:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}: that temperatures have increased by 1 to 3 degrees Fahrenheit statewide, and that more frequent heavy rains have been causing low areas to flood, resulting in crop, home, and business damages.

Minnesotans are also grappling with immediate impacts of the oil and gas industry on public health and the environment, including air pollution and pipeline-related water pollution. Environmental activist and authorWinona LaDuke, a member of the Chippewa White Earth Nationin north-central Minnesota, spoke about the :{Enbridge pipeline:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:. “I never expected to be spending years fighting Enbridge, but this pipeline company brings more than 70% of the tar sands oil into this country,” she said.

Sam Grant, director of the climate action group Minnesota 350, connected the lawsuit to the nationwide Black Lives Matter protests spurred by the police killing of George Floyd in Minneapolis. “We have a choice between freedom to profit or freedom to breathe,” he said. “It ought to be a no brainer that freedom to breathe comes first, because we have to be alive for anything else to happen.”

Grant described low-income Black and Brown neighborhoods in northern Minneapolis where air pollution from fossil fuel facilities has shortened lifespans by at least 11 years compared to the national average. And in a first for climate lawsuits, the complaint itself highlights climate justice, too, right up top on the first page, where it notes, "Warming will continue with devastating economic and public-health consequences across the state and, in particular, disproportionately impact people living in poverty and people of color."

While oil companies don’t like to lose money, especially now when the oil and gas market:{ :(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}::{is turned upside down:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:0px 0px;font-style:inherit;font-variant:inherit;font-stretch:inherit;-webkit-tap-highlight-color:rgba(0, 0, 0, 0);box-sizing:inherit"):}:, it’s possible the “disclosure of all internal research” piece of the Minnesota suit is the thing they’ll fight hardest. A full disclosure of the Koch, API, and ExxonMobil files on climate change could hurt its chances of winning all the other climate cases, and send the industry hurtling down the Big Tobacco pathway towards a multi-hundreds of billions of dollars settlement with states.

Juwaria Jama, co-leader of the Minnesota Youth Climate Strike, spoke about the fossil fuel industry “infringing on Indigenous and low-income communities to build pipelines and refineries that harm those communities.”

“Because of the deception of these companies, as teenagers we are spending our time fighting for a future that could be stolen,” said Jama, “a last-minute battle to preserve a livable world for myself and subsequent generations. And the most heartbreaking thing is that it could have been prevented.

“These corporations knew the impacts of climate change long before now, and they could have sounded the alarm. Instead they covered up the damage,” she said. “These corporations have gone far too long without being held accountable for our globe and our future.”

AG seemed an odd lateral or even down move? but recall AG as step stone: plus:

https://grist.org/climate/two-new-climate-lawsuits-give-big-oil-the-tobacco-treatment/

In 2015, New York attorney general Eric Schneiderman launched an investigation into what exactly ExxonMobil knew about climate change decades earlier and whether it covered up its findings. The following year, Virgin Islands attorney general Claude Walker issued a subpoena to Exxon as part of an investigation into whether the company had violated racketeering laws by misrepresenting its knowledge of climate science. Massachusetts attorney general Maura Healey launched her own probe into the company’s dealings shortly after. The investigations paved the way for a flood of lawsuits from cities, states, and other entities and groups against many of the world’s largest oil companies.

These legal actions have made a range of specific allegations, from consumer fraud to civil conspiracy, but the fundamental claim underpinning all of them is that Big Oil knew about the dangers posed by climate change and lied about them in order to keep digging up, refining, and selling its product.

ExxonMobil, Chevron, BP, Shell, ConocoPhillips, and other major oil companies have put up a fierce, and largely successful, fight in court over to avoid getting pinned for their role in the climate crisis. As oil companies racked up win after win for in 2018 and 2019, it seemed like the climate lawsuit was doomed. Most recently, a judge ruled in favor of Exxon in the New York case, which alleged investor fraud, in December.

But two new lawsuits from Minnesota and Washington, D.C., hint that climate lawsuits against Big Oil might be mounting a comeback.

The new lawsuits mirror Massachusetts’ ongoing lawsuit against Exxon, which alleges that the oil giant violated the state’s consumer and investor protection law. In Minnesota on Wednesday, state attorney general Keith Ellisonannounced a lawsuit against ExxonMobil, Koch Industries, and the American Petroleum Institute, a trade association, that alleges that these entities have deceived consumers about the negative impacts of fossil fuel consumption and climate change. At the press conference announcing the suit, Ellison held up an internal ExxonMobil engineering document from 1979 that acknowledged that the company knew that climate change was caused by fossil fuel combustion. “They knew CO2 was going to go up because of burning fossil fuels, they knew it would cause climate change, and they knew that there would be negative catastrophic effects to the world and to Minnesota,” Ellison said.

The case bears similarity to a past case brought by Minnesota against tobacco companies: In 1998, Minnesota settled a lawsuit against the tobacco industry under similar allegations of consumer fraud, resulting in the creation of a $6.5 billion fund that has been used for public health programs and anti-smoking campaigns.Doug Blanke, director of the Public Health Law Center at Mitchell Hamline School of Law, oversaw the consumer protection division of the Minnesota attorney general’s office at the time of the ‘98 suit. “The lies of the tobacco industry … echo through every page of today’s lawsuit, because the alleged actions of these defendants are ripped straight from the playbook of the tobacco industry,” Blanke said at the press conference announcing the lawsuit.

The press conference announcing the Minnesota lawsuit emphasized the disproportionate effects of climate change on Black and Indigenous communities. Winona LaDuke, an Anishinaabekwe activist and the director of the Native environmental nonprofit Honor the Earth, emphasized the impacts of climate change on Indigenous communities. “This last year was a very hard year on a lot of our rice all across the north country,” LaDuke said. “They’re expecting a 25 percent increase in these heavy rain events over the next years. That’s going to be disastrous to our rice. Our rice is who we are, that’s who we are as people.”

The D.C. lawsuit, which was announced by D.C. Attorney General Karl Racine on Thursday, alleges that BP, Chevron, ExxonMobil, and Shell knowingly misled District consumers about the role their products play in exacerbating climate change for the past five decades. “Defendants continue to mislead D.C. consumers to this day,” says the complaint, which was filed in D.C. Superior Court. Racine brought the suit against four of the world’s largest oil companies under the District’s Consumer Protection Procedures Act, a statute that bans businesses from engaging in deceptive trade practices and misleading consumers. “These companies were not simply irresponsible in their reckless pursuit of profit,” Racine said on a press call on Thursday. “Their deceptive advertisement and misleading claims violate the D.C. consumer protection law.”

Deputy attorney general Kathleen Konopka said Racine’s office wasn’t aware of the Minnesota lawsuit until it was filed on Wednesday. But she noted that D.C.’s lawsuit echoes some of the environmental injustice claims brought by the Minnesota suit. “There are indications that certain vulnerable populations will be more susceptible to rising temperatures and climate change,” she said on the call, “particularly in low-income communities and particularly our seniors.” If successful, the D.C. lawsuit would prohibit the four oil companies from engaging in what Racine’s office considers deceptive advertising campaigns. The companies would also have to pay civil penalties and provide financial relief to consumers in D.C.

William Boyd, a law professor at the University of California, Los Angeles, says the two new lawsuits might get more traction than past attempts. “These are broad consumer protection statutes, and the facts that are alleged in the complaints are pretty damning for the big oil companies in the sense that they show a systematic effort to suppress and divert climate science and to mislead the public about the impacts of climate change,” said Boyd. Oil companies did “essentially what the tobacco companies did in funding and supporting a whole campaign through a whole network of organizations to essentially mislead the public,” Boyd said.

In statements to the Washington Post and Reuters, an ExxonMobil spokesperson dismissed both the Minnesota and the D.C. lawsuit, saying that the suits are part of a “coordinated, politically motivated campaign against energy companies.”

Boyd thinks more lawsuits could be in store for Big Oil. “I suspect many other states could be or are already thinking about similar actions,” Boyd said. “I think the overarching litigation strategy here is to find a legal theory that gets traction, and then others can jump on board.”

If the attorneys general succeed, the cost for the oil companies could be high. Ellison said that the settlement could be in the range of the state’s 1998 $6.5 billion settlement with the tobacco industry. “If you put it all together you’re looking at claims that could move into the many billions of dollars fairly quickly,” said Boyd. It’s unclear whether these lawsuits will actually achieve their intended goal. But one thing is obvious: cities and states aren’t giving up pinning the blame for climate fallout on major oil companies just yet.

ref

https://kstp.com/news/live-video-minnesota-attorney-general-ellison-files-lawsuit-against-exxonmobil-koch-industries-american-petroleum-climate-change/5770393/

Minnesota Attorney General Keith Ellison announced on Wednesday he had filed a consumer protection lawsuit against oil companies that he claims defrauded Minnesotans about climate change.

The lawsuit against ExxonMobil, Koch Industries and the American Petroleum Institute includes claims for fraud, failure to warn and separate violations of Minnesota statutes that prohibit consumer fraud, deceptive trade practices and false statements in advertising, according to a statement from the Attorney General's Office.

"We're here suing these defendants — API, ExxonMobil and Koch — for hiding the truth, confusing the facts and muddling the water to devastating effect," Ellison said in a news conference.

ExxonMobil is one of the largest producers of oil in the United States; Koch Industries is a Kansas-based corporation that produces petroleum products and is heavily involved in oil lobbying; and the American Petroleum Institute is a trade organization that represents America's oil and natural gas industry.

Aside from an injunction against continued violations of consumer protection laws, the lawsuit is also requesting that the defendants pay restitution for Minnesotans and fund a public education campaign on climate change.

With Wednesday's filing, Minnesota joins states such as Massachusetts, New York and Rhode Island in seeking to hold companies to account for their roles in the harm caused by climate change.

“When corporations and trade associations break the law and hurt Minnesotans, it’s my job and my duty to hold them accountable. The fraud, deceptive advertising, and other violations of Minnesota state law and common law that the lawsuit shows they perpetrated have harmed Minnesotans’ health and our state’s environment, infrastructure, and economy,” Ellison said in a statement.

In a news conference, Ellison said he feels confident in Minnesota's ability to win a lawsuit based on the state's "strong" consumer protection laws.

[pix Ellison announces lawsuit against ExxonMobil, Koch Industries, American Petroleum | KSTPEllison announces lawsuit against ExxonMobil, Koch Industries, American Petroleum | KSTP]

Doug Blanke, who directs the Public Health Law Center at Mitchell Hamline School of Law, said Ellison has a strong case. Blanke worked on a previous lawsuit the state successfully brought against tobacco companies that cited some of the same statutes.

“Misleading the public about science is not a new concept,” Blanke said in a statement. “Unfortunately, some companies seem to care more about their bottom lines than the public’s health. But it’s a violation of Minnesota law to mislead consumers about the products you sell, and the Attorney General has laid out a powerful case that these companies did exactly that.”

In the news conference, Ellison brought speakers to the podium who explained how climate change has disproportionately affected farmers, Black and Indigenous populations and younger generations.

primary dccc #2

In a rare bipartisan effort Tuesday, House lawmakers voted 258 to 159 to exempt banks with less than $250 billion in assets from many of the 2010 Dodd-Frank Act regulations, even though banks’ profits are soaring. The Dodd-Frank Act was passed after the 2008 economic crisis, which was provoked by years of risky lending by Wall Street banks. Thirty-three Democrats joined their Republican counterparts in voting for the financial regulation rollback, which, if signed into law, would leave less than 10 banks in the U.S. subject to stricter federal oversight. For more, we speak with Minnesota Democratic Congressmember Keith Ellison. He is the first Muslim member of Congress and the deputy chair of the Democratic National Committee,

28th 5/15

Congressman Rick Nolan of Minnesota spoke at the press conference, telling attendees that “Good and successful movements in this country have always started with ordinary people who commit to accomplishing great things. And so it was with ending slavery, with child labor laws, environmental laws, women’s suffrage, civil rights, the progressive income tax, Social Security, Medicare, rights for the disabled – you name it – this movement transcends labels, it transcends political parties, it transcends regions and it transcends generations.”

Nolan added that “America’s future and American democracy is dependent upon the success of this movement.” In addition to Nolan, co-sponsors of the bill include Mark Pocan (WI), Matthew Cartwright (PA), Jared Huffman (CA), Raul Grijalva (AZ), and Keith Ellison (MN).

Keith Maurice Ellison (born August 4, 1963) is the U.S. Representative for Minnesota's 5th congressional district, serving since 2007. He is a member of the Democratic-Farmer-Labor Party, the Minnesota state Democratic Party affiliate. The district centers on Minneapolis and surrounding suburbs. Ellison is a co-chair of the Congressional Progressive Caucus and Chief Deputy Whip for the 113th Congress, also notably serving in the House Committee on Financial Services.

Ellison is the first Muslim to be elected to Congress.^[1] He is also the first African American elected to the House from Minnesota.^[2]

Early life, education, and career:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Keith Ellison, the third of five sons, was born and raised Roman Catholic^[3] in Detroit, Michigan, by his parents Leonard Ellison, a social worker and a psychiatrist, and Clida (Martinez) Ellison.^[1][4][5] Ellison and three of his brothers became lawyers; his other brother became a doctor. One of Ellison's brothers is also the pastor of the Baptist"Church of the New Covenant" in Detroit.^[4] Ellison's youth was influenced by the involvement of his family in the civil rights movement, including his grandfather's work as a member of theNAACP in Louisiana.^[1]

After graduating with a }:Bachelor of Arts in economics in 1987, Ellison married his high-school sweetheart^[3] and moved to Minneapolis to attend theUniversity of Minnesota Law School. While there, he wrote several articles in support of Louis Farrakhan of the Nation of Islam. Ellison graduated with a Juris Doctor in 1990.^[11][12]Ellison graduated in 1981 from the University of Detroit Jesuit High School and Academy, where he was active in sports and a senator in the student government.^[4][7] At age 19, while attending Wayne State University in Detroit, Ellison converted from Catholicism to Islam, later giving the following explanation: "I can't claim that I was the most observant Catholic at the time [of my conversion]. I had begun to really look around and ask myself about the social circumstances of the country, issues of justice, issues of change. When I looked at my spiritual life, and I looked at what might inform social change, justice in society... I found Islam."^[8][9][10]

Ellison and his former wife Kim, a high-school mathematics teacher,^[13] had four children between 1989 and 1997:^[14] a daughter, Amirah, and three sons, Jeremiah, Elijah, and Isaiah.^[13] Kim Ellison is not Muslim, but their four children have been raised in that faith.^[15] During Ellison's 2006 campaign, Kim Ellison revealed that she had been living with moderate multiple sclerosis for several years.^[16] Ellison filed for a legal separation from Kim in 2010,^[17] and their divorce was finalized on May 2, 2012.^[18]

After law school, Ellison worked for three years at the firm of Lindquist & Vennum, where he was a litigator specializing in civil rights, employment, and criminal defense law.^[11][14] Ellison then became executive director of the nonprofit Legal Rights Center in Minneapolis, which specializes in the defense of indigent clients.^[14] Upon leaving the Legal Rights Center, Ellison entered private practice with the law firm Hassan & Reed Ltd, specializing in trial practice.^[19] Ellison has also been regularly involved in community service. He served as the unpaid host of a public affairs talk program at KMOJ radio,^[14] and has also often volunteered as a track coach for several organizations, working with youth between the ages of 5 and 18. He said, "It’s a great community-building device because it’s for all ages and all genders. Everyone can find a way to fit in."^[14]

Minnesota House of Representatives:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

In November 2002, Ellison was elected to his first public office, as a member of the Minnesota House of Representatives serving House District 58B. At the time he took his seat, his party was the smallest House minority in Minnesota history.^[20] During this session, Ellison was appointed to the Governmental Operations & Veterans Affairs Policy Committee, the Judiciary Policy & Finance Committee and the Local Government & Metropolitan Affairs Committee. He also spearheaded an ethics complaint against Rep. Arlon Lindner for a speech Lindner made that Ellison alleged amounted to a denial that homosexuals were targeted by the Nazis and killed during the Holocaust.^[citation ^needed]

Ellison was reelected to his seat in 2004 with 84% of the vote. During the 84th session, he served on the Civil Law & Elections Committee and the Public Safety Policy & Finance Committee. Upon his election to Congress, Ellison's seat in the Minnesota House of Representatives was filled by Augustine Dominguez, a Latino community activist and fellow member of the DFL.^[21]

U.S. House of Representatives:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Ellison during the 2006 campaign

Elections:{:{[:(style="margin-right:0px;margin-left:0px"):}::(style="user-select:none;font-weight:normal;margin-left:1em;vertical-align:baseline;display:inline-block;white-space:nowrap;unicode-bidi:-webkit-isolate"):}:edit]

In the November 2006 election, Ellison faced Republican Alan Fine, the Green Party's Jay Pond, and Tammy Lee of the Independence Party. Ellison won the seat with 56% of the vote.^[25][26]Ellison's House seat was previously held by Martin Olav Sabo, whose announcement of his intention to retire precipitated Ellison's candidacy. At the DFL Convention on May 6, 2006, Ellison won the party endorsement over 9 other candidates, leading 2-to-1 on the first ballot, and winning endorsement on the 4th ballot. In the primary, Ellison faced former state senator Ember Reichgott Junge, Minneapolis city council member Paul Ostrow, and Sabo's chief of staff Mike Erlandson, whom Sabo had endorsed. Ellison won the primary on September 12, 2006, with 41% of the vote.^[22]One issue Ellison's campaign opponents raised was the repeated suspensions of his driver's license for failure to pay tickets and fines.^[23] Ellison had also failed to pay all or part of his income taxes in five separate years between 1992 and 2000, forcing the state and Internal Revenue Service to putliens on his home. He later paid in excess of $18,000.^[1][24]

Tenure:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Ellison was elected to the House of Representatives on November 7, 2006, and sworn in on January 4, 2007. He garnered national attention with his decision to use an English translation of the Qur'an that once belonged to President Thomas Jefferson for his reenacted swearing-in ceremony, which generated both praise and criticisms from political pundits.

At the time of his swearing in, Ellison said he intended to focus on wages, housing, "relief and justice for the middle class", and ending the U.S. involvement in the Iraq War.^[27] Ellison was also a vocal critic of President George W. Bush's administration, and sought a position on the House Judiciary Committee for oversight.^[28]

In his first week as a member of Congress, Ellison voted with the new Democratic majority as part of the 100-Hour Plan to raise the minimum wage, for federal funding of stem cell research, and to allow Medicare to negotiate pharmaceutical prices.^[29]

On April 3, 2014, Ellison introduced the Money Remittances Improvement Act of 2014 (H.R. 4386; 113th Congress) into the United States House.^[30] The bill would make it easier for nonbank financial institutions such as money service businesses to provide remittance payments internationally.^[31] Ellison said that "passage of the Money Remittances Improvement Act is cause for celebration for all diaspora communities, including the Somali and Hmong communities I am proud to represent in Minnesota."^[32]

Credit reform

outside the Capitol in June 2007

On May 3, 2007, Ellison introduced a bill to outlaw universal default, the practice whereby credit card companies raise interest rates on customers who are behind on payments to other creditors. The bill was supported by House Financial Services Committee chairman Barney Frank. Ellison, who described the bill as "the beginning of a whole credit reform effort we're going to be pursuing," also announced his interest in limiting high interest rates on credit cards and easing the process for those who have a legitimate need to file bankruptcy.^[33] This provision ultimately became law in 2009 as part of the "Credit Cardholders' Bill of Rights" portion of the Credit CARD Act of 2009.

Committee assignments:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Committee on Financial Services (1/12/2007 to present day)
- Subcommittee on Capital Markets and Government-Sponsored Enterprises
- Subcommittee on Oversight and Investigations
  - Terms on Committee (and "Thomas" links at the Library of Congress): 113th Congress (H.Res. 7 - Dem's), 112th (H.Res. 39 - Dem's),111th (H.Res. 24) and 110th (H.Res. 56).

See Note Below.^[34]

Committee on Foreign Affairs^[35][36]
- 111th Congress, 2009-2010 (H.Res. 74 and a January 29, 2009 Ellison Press Release)
Judiciary Committee^[37]
- 110th Congress, 2007-2008 (H.Res. 75)

Caucus membership

Congressional Progressive Caucus (Co-chair)^[38]

Political positions:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Abortion:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

In 2009 and 2011, Ellison had a 100% rating from NARAL Pro-Choice America indicating a pro-choice voting record.^[39][40] In 2009, Ellison condemned the assassination of Dr. George Tiller by an anti-abortion activist, saying "There is no room in America to ‘justify’ murder in the name of ideological differences. I condemn the act committed against Dr. Tiller as well as those who take comfort from his death."^[41]

Gay Rights:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

In an interview with the BBC's Program Outlook, on November 12, 2010, Ellison was asked to describe his constituents. He answered: "The district I represent is the kind of district where you can have a Member of Congress stand up for religious tolerance and against religious bigotry, against anyone, but also stand up for the rights of gays too."^[42]

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After President Bush vetoed HR 1591 that provided military funding for the Iraq War because it contained timetables for withdrawal, Ellison and fellow Minnesota Rep. Betty McCollum, joined House Speaker Nancy Pelosi and other top House Democrats in voting "no" to HR 2206 that provided the funding without any timetables. The bill passed the House on a 280 to 142 margin.^[43]

Ellison joined fellow Minnesota freshman Democrat Tim Walz in opposing President George W. Bush's plan to increase troop levels in Iraq.^[44] On January 10, 2007, Bush announced his plans for the Iraq War troop surge of 2007. The gist of this announcement had been known around the Capitol for over a week, and when the Associated Press asked Ellison for his reaction to the idea on January 8, 2007, he stated that it was "way too late, way too little ...So rather than do something small and ineffective, why not get about the business of what we're going to have to do eventually, which is to begin to end the occupation?"^[45] Ellison called for an immediate withdrawal in Iraq: "We could describe it as a redeployment or withdrawal, but I think we have run the course in terms of our ability to resolve this conflict militarily. I think we need to have a political and economic and diplomatic engagement, and we need to encourage the forces that are in Iraq to begin to resolve the violence in Iraq."^[45] When asked if he would support Bush’s call for an additional $100 billion to fund the wars in Iraq and Afghanistan, Ellison said, "I want to see [the request] first, I want to actually look at it, but I'm not inclined to continue to support a war or an occupation that he has no plans to get us out of, and which is so costly in terms of dollars and lives of American soldiers but also Iraqis."^[45] The White House, when asked for a reaction to the comments, referred to a previous statement by press secretary Tony Snow: "Democrats will have to decide where they stand on two issues: ‘No. 1, do you want Iraq to succeed, and, if so, what does that mean? And, No. 2, do you believe in supporting the troops as you say, and how do you express that support?’"^[45]

Bush administration:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

On July 25, 2007, Ellison voted in the House Judiciary Committee to issue citations of Contempt of Congress to White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers for "failure to comply with subpoenas on the firings of several federal prosecutors".^[46]

On June 28, 2007, Ellison became a cosponsor of Rep. Dennis Kucinich bill to impeach Vice President Dick Cheney for "high crimes and misdemeanors." Ellison's spokesperson, Rick Jauert, said the effort was "largely to send a message" and that Ellison "has no illusions that this is going anywhere and that's fine. We've got more important things to do that affect people's daily lives. He basically signed on out of principle, as an expression of the importance of the rule of law — that nobody is above the law, not even the vice president."^[47]

On July 8, 2007, Ellison gave a speech in Edina, Minnesota, where he denounced Bush's commutation of Lewis Libby's sentence: "If Libby gets pardoned, then he should not have the cover of the Fifth Amendment. He's going to have to come clean and tell the truth. Now, he could get Gonzales-itis referring to U.S. Attorney General [Alberto Gonzales], you know, with 71 lapses of memory within a two-hour period."^[48] He also criticized Bush's White House Office of Faith-Based and Community Initiatives saying, "This is basically the Department of Religious Outreach ... . It's essentially a public-relations outreach arm for the Bush administration to reach out to the far right of the evangelical Christian movement. That's really all it is."^[48]

Human rights:{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

Ellison issued a statement Friday March 21, 2008 that criticized the Chinese government for its Tibet policy and for its relationship with Sudan's leaders 'as they commit genocide on the citizens of Darfur.'"^[49]

Ellison was arrested along with seven other people including U.S. Representatives James McGovern, John Lewis, Donna Edwards, Lynn Woolsey for civil disobedience in April 2009 when they spoke at the Sudanese Embassy in Washington, D.C. to protest that the president of Sudan, Omar al-Bashir, had asked international aid groups bringing food, health care and water, to leaveDarfur.^[50] While in Khartoum in August 2009, Ellison wrote a message on Twitter saying he "ran straight into Pres. Omar Bashir. He has been indicted by the Inter'l Crim. Ct. (ICC) for war crimes."^[51]