At a time when fossil fuel companies are using a public health crisis to demand financial and regulatory support, the governments of Baltimore and Rhode Island are calling out a “decades-long campaign of deception” by these companies in urging courts to advance lawsuits trying to hold polluters responsible for climate damages.
Over a dozen of these climate liability lawsuits are currently pending, brought by cities, counties, one state, and one trade association seeking payments to help cover climate change-related costs. The lawsuits target major fossil fuel companies like ExxonMobil, Chevron, and BP, alleging they deliberately deceived the public and policymakers on the dangers of fossil fuels.
And while the companies have fought hard to have these suits handled in federal court, where they likely have an easier path to dismissal, several of the cases are now proceeding in state courts.
The Supreme Court rejected a request from more than 2 dozen multinational energy companies to block a state court lawsuit brought by the city of Baltimore seeking to hold the companies accountable for their role in changing the earth’s climate https://t.co/s9FyLmSvWN— The New York Times (@nytimes) October 23, 2019
In two of those cases, the City of Baltimore and the State of Rhode Island recently responded to the companies’ motions to dismiss the suits. Both governments filed briefs opposing these motions, going to great lengths to emphasize the fossil fuel corporations’ alleged deceptive behavior that is the basis of the legal claims. Baltimore’s brief, for example, uses the word “deception” (or some variation thereof) 37 times, and the word “mislead” and its variations 21 times.
In a brief filed April 7 in the Circuit Court for Baltimore City, the Mayor and City Council of Baltimore argue that the City was correct in filing nuisance and product liability claims under state law.
“Defendants are liable for wrongfully marketing and promoting products they knew would cause climate change: they knew what the harmful consequences would be, but callously engaged in a comprehensive campaign to discredit the relevant scientific evidence and failed to issue any warnings that would have enabled the public to mitigate those harms going forward,” the brief states.
Fossil fuel companies have tried to characterize these cases as trying to achieve complex policy decisions in the courts, but Baltimore and other plaintiffs have pushed back against what they say is a misrepresentation of their legal claims. They argue that these lawsuits are not about “solving climate change” (as some fossil fuel allies have claimed).
The suits also do not challenge fossil fuel production as illegal. Rather, they allege that the companies’ actions to undermine climate science and to knowingly sell and promote a harmful product render them liable for climate impacts that they foresaw. The briefs from Baltimore and Rhode Island mention that as early as 1968, a report commissioned by the American Petroleum Institute warned oil and gas companies that potential damage from burning fossil fuels “could be severe,” with impacts like rising sea levels and warming oceans.
“Starting in 1988, Defendants launched multi-million-dollar public relations campaigns to deny the existence or consequences of global warming; create a false ‘controversy’ surrounding the very facts that their internal communications had accepted as scientific reality; and deceive the public in order to continue aggressively marketing and promoting the increased — and increasingly profitable — use of their fossil-fuel products,” Baltimore states in its brief. “That is what this case is about.”
A group of former U.S. government officials and diplomats who served both Democrat and Republican administrations submitted a brief in support of Baltimore that also highlighted the alleged deceptive conduct. The brief countered an argument made by the U.S. Department of Justice (which is supporting the fossil fuel companies) that Baltimore’s climate lawsuit undercuts U.S. foreign policy. According to the former officials and diplomats, “the United States has no foreign policy interest in immunizing from judicial review corporate deception, misconduct, and concealment of the kind alleged by Baltimore.”
The ripple effect of New York City's climate lawsuit against oil companies is widening.— Alexander Kaufman (@AlexCKaufman) July 2, 2018
Rhode Island just announced its suing 21 fossil fuel companies in a similar suit. pic.twitter.com/zepoEJ8oWe
Rhode Island, which filed its brief in state court last month, made many of the same arguments as Baltimore, including repeatedly referencing the companies’ knowledge of climate impacts and their misrepresentation of that knowledge.
“Despite their knowledge, Defendants for decades engaged in a coordinated, multi-front effort to conceal and dispute these truths, discredit the growing body of publicly available science, and persistently create doubt in the minds of customers, consumers, regulators, and the media — while serious changes to the climate occurred and associated harms mounted,” Rhode Island's brief states.
While the Baltimore and Rhode Island cases proceed in state courts, the fossil fuel companies continue to pursue federal court jurisdiction. In Rhode Island’s case, the First Circuit Court of Appeals is expected to rule on this matter.
In Baltimore’s case, the Fourth Circuit Court of Appeals recently decided in the city’s favor that the case belongs in state court. The companies are petitioning the Supreme Court to overrule that decision.
*Updated 4/13/20 to include a statement from Chevron.