Imperial Beach IB SD
a US small-town mayor sued the oil industry. Then Exxon went after him
This article is more than 2 years old
The mayor of Imperial Beach, California, says big oil wants him to drop the lawsuit demanding the industry pay for the climate crisis
Chris McGreal in Imperial Beach, California
Sat 16 Oct 2021
Serge Dedina is a surfer, environmentalist and mayor of Imperial Beach, a small working-class city on the California coast.
He is also, if the fossil fuel industry is to be believed, at the heart of a conspiracy to shake down big oil for hundreds of millions of dollars.
ExxonMobil and its allies have accused Dedina of colluding with other public officials across California to extort money from the fossil-fuel industry. Lawyers even searched his phone and computer for evidence he plotted with officials from Santa Cruz, a city located nearly 500 miles north of Imperial Beach.
The problem is, Dedina had never heard of a Santa Cruz conspiracy. Few people had.
“The only thing from Santa Cruz on my phone was videos of my kids surfing there,” Dedina said. “I love the fact that some lawyer in a really expensive suit, sitting in some horrible office trying to find evidence that we were in some kind of conspiracy with Santa Cruz, had to look at videos of my kids surfing.”
That’s where the laughter stopped.
The lawyers found no evidence to back up their claim. But that did not stop the industry from continuing to use its legal muscle to try to intimidate Dedina, who leads one of the poorest small cities in the region.
The mayor became a target after Imperial Beach filed a lawsuit against ExxonMobil, Chevron, BP and more than 30 other fossil-fuel companies demanding they pay the huge costs of defending the city from rising seas caused by the climate crisis.
Homes along the final stretch of Imperial Beach coast before reaching the border with Mexico. Photograph: John Francis Peters/The Guardian
Imperial Beach’s lawsuit alleges the oil giants committed fraud by covering up research showing that burning fossil fuels destroys the environment. The industry then lied about the evidence for climate change for decades, deliberately delaying efforts to curb carbon emissions.
The city’s lawsuit was among the first of a wave of litigation filed by two dozen municipalities and states across the US that could cost the fossil-fuel industry billions of dollars in compensation for the environmental devastation and the deception.
Dedina says his minority majority community of about 27,000 cannot begin to afford the tens of millions of dollars it will cost to keep at bay the waters bordering three sides of his financially strapped city. Th.. have turned Imperial Beach into an island.
One assessment calculated that, without expensive mitigation measures, rising sea levels will eventually swamp some of the city’s neighbourhoods, routinely flood its two schools and overwhelm its drainage system.
Imperial Beach’s annual budget is $20m. Exxon’s chief executive, Darren Woods, was paid more than $15m last year.
“We don’t have a pot to piss in in this city. So why not go after the oil companies?” he said. “The lawsuit is a pragmatic approach to making the people that caused sea level rise pay for the impacts it has on our city.”
That’s not how Exxon, the US’s largest oil company, saw it. Its lawyers noted that Imperial Beach filed its case in July 2017, at the same time as two California counties, Marin and San Mateo. The county and city of Santa Cruz followed six months later with similar suits seeking compensation to cope with increasing wildfires and drought caused by global heating.
Exxon alleged that the sudden burst of litigation, and the fact that the municipalities shared a law firm specialising in environmental cases, Sher Edling, was evidence of collusion.
Exxon filed lawsuits claiming the municipalities conspired to extort money from the company by following a strategy developed during an environmental conference at the Scripps Institution of Oceanography in La Jolla, 25 miles north of Imperial Beach, nine years ago.
The meeting, organised by the Climate Accountability Institute and the Union of Concerned Scientists, produceda report outlining how legal strategies used by US states against the tobacco industry in the 1990s could be applied to cases against fossil fuel companies.
Dedina was also targeted by one of the US’s biggest business groups at the forefront of industry resistance to increased regulation to reduce greenhouse gases, the National Association of Manufacturers, and a rightwing thinktank, the Energy & Environment Legal Institute.
Mayor Dedina looks out to sea. Photograph: John Francis Peters/The Guardian
The manufacturing trade group was behind the efforts to obtain data from Dedina’s phone and documents in 2018. In its public disclosure request to the mayor’s office, NAM called Imperial Beach’s lawsuit “litigation based on political or ideological objections more appropriately addressed through the political process”.
Exxon is attempting to use a Texas law that allows corporations to go on a fishing expedition for incriminating evidence by questioning individuals under oath even before any legal action is filed against them. The company is trying to force Dedina, two other members of Imperial Beach’s government, and officials from other jurisdictions, to submit to questioning on the grounds they were joined in a conspiracy against the oil industry.
“A collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change,”the oil firm claimed. “ExxonMobil finds itself directly in that conspiracy’s crosshairs.”
[
How cities and states could finally hold fossil fuel companies accountable
Read more](https://www.theguardian.com/environment/ng-interactive/2021/jun/30/climate-crimes-fossil-fuels-cities-states-interactive)
A Texas district judge approved the request to depose Dedina, but then a court of appeals overturned the decision last year. The state supreme court is considering whether to take up the case.
The target on Dedina is part of a wider pattern of retaliation against those suing Exxon and other oil companies.
In an unusual move in 2016, Exxon persuaded a Texas judge to order the attorney general of Massachusetts, Maura Healey, to travel to Dallas to be deposed about her motives for investigating the company for alleged fraud for suppressing evidence on climate change. The judge also ordered that New York’s attorney general, Eric Schneiderman, be “available” in Dallas on the same day in case Exxon wanted to question him about a similar investigation.
Healey accused Exxon of trying to “squash the prerogative of state attorneys general to do their jobs”. The judge reversed the deposition order a month later and Healey filed a lawsuit against the company in 2019, which is still awaiting trial.
But similar tactics persuaded the US Virgin Islands attorney general to shut down his investigation of the oil giant.
Patrick Parenteau, a law professor and former director of the Environmental Law Center at Vermont law school, said the attempt to question Dedina and other officials is part of a broader strategy by the oil industry to counter lawsuits with its own litigation.
“These cases are frivolous and vexatious. Intimidation is the goal. Just making it cost a lot and be painful to take on Exxon. They think that if they make the case painful enough, Imperial Beach will quit,” he said.
The city’s lawsuit claims it faces a ‘significant and dangerous sea-level rise’. Photograph: John Francis Peters/The Guardian
If the intent is to kill off the litigation against the oil industry, it’s not working. Officials from other municipalities have called Exxon’s move “repugnant”, “a sham” and “outrageous”, and have vowed to press on with their lawsuits.
Dedina described the action as a “bullying tactic” by the oil industry to avoid accountability.
“The only conspiracy is [that] a bunch of suits and fossil-fuel companies decided to pollute the earth and make climate change worse, and then lie about it,” he said. “They make more money than our entire city has in a year.”
The city’s lawsuit claims it faces a “significant and dangerous sea-level rise” through the rest of this century that threatens its existence. Imperial Beachcommissioned an analysis of its vulnerability to rising sea levels which concluded that nearly 700 homes and businesses were threatened at a cost of more than $100m. It said that flooding will hit about 40% of the city’s roads, including some that will be under water for long periods. Two elementary schools will have to be moved. The city’s beach, regarded as one of the best sites for surfing on the California coast, is being eroded by about a foot a year.
Imperial Beach sits at the southern end of San Diego bay. Under one worst-case scenario, the bay could merge with the Tijuana River estuary to the south and permanently submerge much of the city’s housing and roads.
A view of the Tijuana River estuary. Photograph: John Francis Peters/The Guardian
The city has received some help with creating natural climate barriers. The Fish and Wildlife Service restored 400 acres of wetland next to the city as a national wildlife refuge which also acts as a barrier to flooding, and is expected to restore other wetlands together with the Port of San Diego. A grant is paying for improved equipment to warn of floods.
But that still leaves the huge costs of building new schools and drainage systems, and adapting other infrastructure. Dedina said that without the oil companies stumping up, it won’t happen.
“People ask, how did you go against the world’s largest fossil fuel companies? Isn’t that scary? No. What’s scary is coastal flooding and the idea that whole cities would be under water,” said the mayor.
“Honestly, bring it on. I can’t wait to make our case. I can’t wait to take the fight to them because we have nothing to lose.”
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How Exxon Uses The Courts To Silence Opponents
3 years agoSteve Hanley78 Comments
CleanTechnica
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This is a simple story. Imperial Beach, California, is a small, working class community near San Diego that is experiencing more frequent flooding as sea levels rise and more powerful storms push ocean water inland. According to The Guardian, without extensive mitigation measures that will cost tens of millions of dollars, rising sea levels will eventually swamp some of the city’s neighborhoods, routinely flood its two schools, and overwhelm its drainage system.
An analysis of the city’s vulnerability to rising sea levels has determined that nearly 700 homes and businesses valued at more than $100 million in Imperial City are threatened. It said that flooding will hit about 40% of the city’s roads, including some that will be under water for long periods. Two elementary schools will have to be moved. The city’s beach, regarded as one of the best sites for surfing on the California coast, is being eroded by about a foot a year.
The mayor of Imperial City is Serge Dedina, a laid back surfer dude who looks like he could have played a part in the movie The Big Lebowski. But he is no pushover. In July, 2017, Imperial City sued Exxon and 30 other oil companies seeking compensation that would help it pay to protect itself from rising sea levels. The city’s suit alleges the oil giants committed fraud by covering up research showing that burning fossil fuels destroys the environment. The industry then lied about the evidence for climate change for decades, deliberately delaying efforts to curb carbon emissions.
Imperial City’s annual budget is $20 million. It doesn’t have the money to prepare for the ravages of a warming planet. “We don’t have a pot to piss in in this city. So why not go after the oil companies?” Dedina says. “The lawsuit is a pragmatic approach to making the people that caused sea level rise pay for the impacts it has on our city.”
The Empire Strikes Back
Exxon has responded to the suit by unleashing an infestation of Gucci shod lawyers upon the city. It claims Imperial Beach and several other communities are engaging in a giant conspiracy to extort money from it and its fossil fuel buddies. The root of the conspiracy is a meeting that took place 9 years ago at the Scripps Institution of Oceanography in La Jolla that was organised by the Climate Accountability Institute and the Union of Concerned Scientists. That meeting produced a report outlining how legal strategies used by US states against the tobacco industry thirty years earlier could be used to bring lawsuits against fossil fuel companies.
“A collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change. ExxonMobil finds itself directly in that conspiracy’s cross hairs,” Exxon says.
Exxon is attempting to use a Texas law that allows corporations to go on a phishing expedition for incriminating evidence before any legal action is filed against them. The company is trying to force Dedina, two other members of Imperial Beach’s government, and officials from other jurisdictions to submit to questioning on the grounds they had joined in a conspiracy against the oil industry.
Chutzpah
Chutzpah is a Hebrew word that is used to describe someone who has overstepped the boundaries of accepted behavior. According to Wikipedia, “in traditional usage, the word expresses a strong sense of disapproval, condemnation and outrage.” In legal circles, they like to describe chutzpah as a person who murders both parents and then begs the court for mercy because he is an orphan. No matter how you define it, Exxon and its fellow climate killing comrades have it in abundance.
The conspiracy, if there is one, is the agreement made between the oil companies 40 or more years ago when their own scientists warned them that rising carbon emissions would lead to a warming planet. The industry took those warnings and shoved them under the rug, telling the public there was nothing to worry about while keeping the truth a secret. They have engaged in a massive conspiracy to convince the public *they* are responsible for global heating, not the oil industry.
Pipeline Protests
Exxon’s tactics are a mirror of those used by Energy Transfer Partners to harass protesters involved in the Standing Rock movement. ETF filed a lawsuit alleging Greenpeace and its partners are engaged in a criminal network of fraud and misinformation. The complaint includes references to “wolfpacks of corrupt” environmental nongovernmental organizations.
Here’s where it gets really weird. The suit is based on the Racketeer Influenced and Corrupt Organizations act of 1070 that targeted organized crime. It also relies on defamation law to wage a scorched earth campaign against nonprofits that dared spoke out against the pipeline’s construction near the Standing Rock Sioux Reservation in North Dakota according to the ACLU.
More recently, hundreds of people were arrested in Minnesota for daring to protest the Line 3 pipeline being built by Enbridge. A report by The Guardian reveals that Enbridge paid police $2.4 million to arrest and conduct surveillance on hundreds of those demonstrators. If there are conspiracies afoot, it is fossil fuel companies who are engaging in them.
How is this any different that Andrew Carnegie sending the Pinkertons to beat and murder workers who dared try to organize a union at his Homestead Mill in 1892? The people who should be arrested are not the protesters who are trying to stop the destruction of the environment but the corporate leaders who are engaging in a concerted, coordinated campaign to commit crimes against humanity for personal gain.
Keep On Keepin’ On
Serge Dedina is not intimidated by the legal guns trained upon him by Big Oil. “The only conspiracy is [that] a bunch of suits and fossil fuel companies decided to pollute the earth and make climate change worse, and then lie about it,” he says. “People ask, how did you go against the world’s largest fossil fuel companies? Isn’t that scary? No. What’s scary is coastal flooding and the idea that whole cities would be under water. Honestly, bring it on. I can’t wait to make our case. I can’t wait to take the fight to them because we have nothing to lose.”
In the words of Haile Sellasie, “Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.”
We as a society owe a debt of gratitude to people like Serge Dedina, and the protesters at Standing Rock and in Minnesota who refuse to be intimated by the oil barons and their highly paid legal prostitutes. We should all have such courage.
https://www.desmog.com/2020/04/30/energy-policy-advocates-horner-exxon-legal-climate/
no lnx docs
‘Energy Policy Advocates’ and the Fossil Fuel Boosters Attacking Legal Efforts to Hold Climate Polluters Accountable
ByDana Drugmand on
Apr 30, 2020
While fossil fuel companies defend against mounting climate liability lawsuits in court, their surrogates are working in parallel to target the attorneys, academics, and institutions supporting these lawsuits. This defensive strategy involves vigorous public records requests, and in some cases legal action or intervention, to try proving a supposed conspiracy by those working to hold polluters accountable.
ExxonMobil has itself argued that attorneys general and municipal officials that have sued the company are engaged in a conspiracy to take down Big Oil. That argument hasn’t gained traction in court, but this hasn’t stopped operatives tied to fossil fuel funding from trying to take up that charge.
A month after the New York Supreme Court Justice Barry Ostrager ruled for Exxon in a securities fraud suit brought by the state attorney general, a group called Energy Policy Advocates filed a motion to intervene in the closed case. The group, along with board member Rob Schilling, a radio and internet journalist, asked for access to a specific set of sealed documents in the case: communications between the attorney general’s office and Matt Pawa, an environmental attorney active in climate liability lawsuits.
In its filing EP Advocates echoed Exxon’s legal tactics by alleging that Pawa had spearheaded a “coordinated campaign with activists and ‘prospective funders,’ going after climate denialism [sic] — along with a bunch of state and local prosecutors nationwide.”
In late February, Ostrager denied the motion, saying that the group had not “demonstrated a sufficient interest in the merits of the underlying securities fraud case.” Noting that the proceedings in the now-closed case had been open and transparent, and the documents made available “with the exception of minor redactions,” Ostrager wrote in his decision that New York’s contact with Pawa was “no secret,” and that EP Advocates and Schilling had themselves admitted in their filing “that they have already obtained substantial information concerning those communications from various sources.”
Ostrager also denied a cross motion by Pawa to appear as an amicus curiae, or “friend of the court,” in the matter, in support of the attorney general’s opposition to EP Advocates and Schilling’s motion and to shed light on the group’s apparent ties to fossil fuel interests.
“We documented in our amicus brief the connections between this organization and the coal industry, and between some of the individuals that have been working on behalf of this organization and Exxon,” Pawa told DeSmog. “So it’s pretty obvious who they are, they’re an industry front group.”
According to Pawa’s brief, “publicly available documents indicate that EP Advocates has a former coal attorney on its board,[horner?[ and is associated with at least one entity funded by coal money; one of these affiliated entities is run in part by someone who previously accepted money from Exxon to promote the view that virtually all climate science is ‘junk science.’”
‘Transparency’ Groups Funded by Coal?
Energy Policy Advocates’ stated goal is to use public records laws to “bring transparency to the realm of energy and environmental policy,” according to the group’s website. Although the organization incorporated in Washington State in 2018, its mailing address and most of the people associated with it appear to be based in Virginia. And while EP Advocates claims it doesn’t take policy positions, its consistent probing of nearly anyone involved in climate liability litigation appears to align well with the interests of fossil fuel corporations.
EP Advocates board member Mike Gardner, an attorney based in Cleveland, is a former coal company lawyer and a former mine inspector, according to his biography on the group’s website.
Energy Policy Advocates website
From the website of Energy Policy Advocates
EP Advocates is tied in through a partnership with another organization, Government Accountability & Oversight, and its Climate Litigation Watch project. The Climate Litigation Watch website launched in May 2018 purportedly to counter the increase in climate litigation against fossil fuel companies.
As Climate Liability News reported, “The website, while claiming to be a neutral clearinghouse for documents, records and information on climate change lawsuits, is run by an attorney with a long history of ties to the coal industry, and strikes an antagonistic tone in describing these lawsuits as a ‘perversion of the justice system’ and the modern equivalent to burning witches.” Energy Policy Advocates uses the Climate Litigation Watch website to publish documents obtained through records requests.
The closely related organization Government Accountability & Oversight describes itself as a public interest law firm, but the people running this nonprofit have ties to the fossil fuel industry, including coal giant Murray Energy. And its board member Chris Horner had been paid directly as a regulatory counsel by coal company Alpha Natural Resources.
Horner previously worked with several “free market” groups peddling climate denial including the Competitive Enterprise Institute and Energy & Environment Legal Institute (E&E Legal). Peabody and Arch Coal have both funded E&E Legal, where Horner worked as a senior legal fellow and where “junk science” proponent Steve Milloy (who has worked for tobacco giant Philip Morris and for Murray Energy) currently works as a senior policy fellow and board member.
Peabody also funded a group called the Free Market Environmental Law Clinic, which Horner co-founded with attorney David Schnare and that later folded following a heated legal dispute between the two. Horner then started Government Accountability & Oversight along with founding board member Matthew Hardin, who also is a board member for Energy Policy Advocates.
Government Accountability & Oversight and Energy Policy Advocates do not disclose any information about funding, but there are clear ties to the coal industry with Gardner and Horner both having worked as counsel to coal companies.Although Energy Policy Advocates claims to focus on transparency, it does not mention its ties to coal in its many public records requests to state attorneys general.
“Never in the numerous FOIAs [Freedom of Information Act requests] to state AGs etc. does Horner or his associates reveal that their patron has a material interest in the outcome of the lawsuits (accountability for pollution) and ultimately the regulation of global warming pollution,” Kert Davies of Climate Investigations Center, a watchdog group tracking fossil fuel front groups and campaigns, said in an email.
Energy Policy Advocates did not respond to requests for more information about the group’s funding sources or its affiliation with Government Accountability & Oversight.
Targeting Climate Scientists and State Attorneys General
As one expert familiar with these organizations told DeSmog, EP Advocates and Government Accountability & Oversight are the latest iterations of Horner-affiliated groups that harass climate scientists and climate advocates.
“They go through cycles, and they do the same anti-science climate denial work under the guise of being pro-American, pro-transparency,” said Lauren Kurtz, executive director of the Climate Science Legal Defense Fund, a nonprofit that works to protect scientists from legal attacks and intimidation efforts.
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Free Market Environmental Law Clinic, the predecessor to both industry front groups, had pursued FOIA requests and litigation against high-profile climate scientists including Penn State Professor Michael Mann, Dr. James Hansen, NASA’s Gavin Schmidt, Texas Tech University Professor Katherine Hayhoe, and Texas A&M University Professor Andrew Dessler.
The American Tradition Institute (ATI) is the former name for the Energy & Environment Legal Institute.
“They have this angle where they try to undermine science or the credibility of the scientists, or the people otherwise advocating for action on climate change,” Kurtz said of Horner and his associates. “They can create a lot of hassle for folks on the receiving end of these records requests.”
The tactic of using public records laws to target scientists also has a “chilling effect,” she said. Kurtz explained that she knows scientists who have been FOIA’d by Chris Horner and said that their colleagues are now hesitant to communicate with them.
Kurtz contended that Horner’s requests constituted a “fishing expedition, where they’re looking for jargon they can take out of context, technical information that they can twist.”
While Kurtz said that Horner and his associates have “stepped back a touch from debating the actual science,” they continue to go after scientists who try to speak out or engage in policy discussions relating to climate change. “They have targeted scientists that have worked with attorneys general,” she said.
They also appear to be targeting the attorneys general directly. Both EP Advocates and Government Accountability & Oversight have brought suits under public records laws against several Democratic state attorneys general. Most recently, in March, the latter group sued Maryland Attorney General Brian Frosh for documents involving Pawa, the environmental lawyer. The group filed a similar suit against Washington State Attorney General Bob Ferguson in early February.
EP Advocates and Government Accountability & Oversight have also sued attorneys general for information on the hiring of fellows at the State Energy and Environmental Impact Center at NYU Law School, a program funded in part by former New York Mayor and presidential candidate Michael Bloomberg.
EP Advocates and Government Accountability & Oversight are seeking to advance a “law enforcement for rent” narrative that privately funded attorneys are placed in state attorney general offices to pursue a politically motivated agenda. Sources including a law professor and a spokesman for the State Impact Center told DeSmog this narrative is unfounded, as there is nothing unusual or improper about attorneys general taking on outside assistants.
‘Tool of Industry’ Pursuing a ‘Broad-Scale Fishing Expedition’
Following an unsuccessful attempt to intervene in the New York attorney general lawsuit against Exxon, Energy Policy Advocates is now trying to intervene in another attorney general lawsuit against Exxon and other fossil fuel companies.
On March 10, EP Advocates filed a motion in the First Circuit Court of Appeals to file an amicus brief in support of fossil fuel company defendants in a climate liability lawsuit brought by the Rhode Island Attorney General. The deadline to file amicus briefs in this case has passed, so EP Advocates is again attempting to intervene belatedly. The group says it has records including handwritten and typed notes that reveal the objective of the lawsuit is to obtain a sustainable funding stream.
Rhode Island, as well a dozen cities and counties across the country, have sued fossil fuel companies for monetary damages, meaning EP Advocates’ “revelation” amounts to nothing. But nevertheless the group is seeking to defend the fossil fuel companies in court, arguing that the Rhode Island suit and similar climate nuisance cases are an “impermissible use of the courts” — an argument that the companies themselves are making.
As Pawa explained, Energy Policy Advocates appears to be simply a “tool of [the fossil fuel] industry.” He said the people associated with the group have tried to make his life harder for awhile, “and they’ve been completely unsuccessful.”
Beyond Pawa and the attorneys general, EP Advocates appears to be in pursuit of communications of anyone involved in climate lawsuits, including attorneys, academics, advocacy organizations, and public officials.
Targets of its records requests have included thelaw firm Sher Edling, which is helping represent state and municipal plaintiffs in climate liability cases; the Institute for Governance and Sustainable Development/Center for Climate Integrity, a Washington, DC, based nonprofit that advocates for progressive climate and development policies; and EarthRights International, an environmental law group involved with a climate damages lawsuit brought by several Colorado communities against fossil fuel producers, as well as several cases involving alleged Indigenous and human rights violations by Big Oil firms.
In California, EP Advocates is seeking records of correspondence between Richmond Mayor Tom Butt and the Union of Concerned Scientists, as well as records between Imperial Beach municipal officials and Vermont Law School Professor Pat Parenteau. Richmond and Imperial Beach are each suing the fossil fuel industry for climate-related damages.
EP Advocates also is targeting Parenteau (who is this reporter’s former climate law professor) in its records requests in Baltimore, Maryland and in Rhode Island, both of which have sued fossil fuel companies.
Parenteau said he hasn’t been in communication with public officials in Baltimore or in California or Rhode Island. “It’s just a broad-scale fishing expedition,” he said.
Parenteau and Davies of the Climate Investigations Center both say these attempts by EP Advocates to dig up dirt on opponents of Exxon and other fossil fuel firms show that these companies and their allies are frightened of potential legal liability and of losing financial and public support.
“The whole financial world is turning on a dime, so the oil companies are getting more and more desperate,” Parenteau said.
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“They’re really scared,” Davies added. “The coal industry is the first to fall, and it’s falling hard. But they’re fighting much harder in the face of that. They’re fighting like a trapped raccoon in the corner.”