William Allison reports at Energy In Depth Echoes of New York’s Failure: Connecticut Files Climate Lawsuit. Excerpts in italics with my bolds.
Four Years In The Making, But The Same Failed Arguments
Back in 2016, Tong’s predecessor, former Attorney General George Jespen, enlisted Connecticut to take part in former New York Attorney General’s Eric Schneiderman’s “AGs United for Clean Power” – a coalition of state attorneys general that aimed to investigate major energy companies over climate change. Not only did Jepsen participate in the March 2016 press conference announcing the coalition, he discussed how it’s formation allowed for easier collaboration between attorneys general.
While the coalition ultimately fell apart, following the withdrawal of several attorneys general and scrutiny over the political motivation behind its formation, the group’s demise (and even New York’s unsuccessful lawsuit) hasn’t stopped Tong. In fact, he’s using many of the same arguments that Schneiderman ineffectively deployed nearly five years ago.
In Monday’s press conference announcing the Connecticut lawsuit, AG Tong said:
“We tried to think long and hard about what our best and most impactful contribution would be. And what we settled on was a single defendant with a very simple claim: Exxon knew, and they lied.” (emphasis added)
Apparently Tong did not get the memo that “Exxon Knew” – the theory pushed by activists and lawyers that the company knew about climate change and hid that knowledge from the public – has been completely debunked. It was this theory that Schneiderman initially built his case against the company around, but he was forced to abandon it because the facts were not on his side. Indeed, after his successor was told to told “to put or shut up” on the accusations, the lawsuit was revised to remove these claims and instead focus on alleged accounting fraud. The case resulted in a resounding defeat for the New York attorney general, with State Supreme Court Justice Barry Ostrager calling the lawsuit “hyperbolic” and “without merit.”
The only other two climate lawsuits that have been decided on their merits were filed by San Francisco and Oakland and then New York City, both of which failed.
Connecticut Has Benefitted From The National Campaign
The Connecticut lawsuit isn’t a standalone effort, but part of a larger national campaign supported and funded by activist and wealthy donors to pursue climate litigation against energy companies.
Tong is still pursing the “Exxon Knew” angle that’s been developed by this campaign despite its previous losses and thinks his lawsuit is the strongest in the nation because Connecticut’s Connecticut Unfair Trade Practices Act doesn’t have a statute of limitations, allowing him to recall ExxonMobil documents from decades ago – even though the company already turned over 3 million documents as part of the New York Attorney General’s failed investigation.
Connecticut was also mentioned in the Pay Up Climate Polluters report, “Climate Costs 2040,” which seems to be a target list of cities to carry out potential litigation, as recent plaintiffs Hoboken, N.J. and Charleston, S.C. were also featured. Pay Up Climate Polluters is a campaign that promotes climate litigation that is sponsored by Center for Climate Integrity, which in turn is a project of Institute for Governance and Sustainable Development (IGSD), which, ironically enough, is paying for the outside counsel in Hoboken’s lawsuit.
IGSD also receives money from a network of Rockefeller groups, which with the help of wealthy donors and activists, have manufactured the entire climate litigation campaign. Tong even filed an amicus brief in support of the climate lawsuit filed by San Francisco and Oakland.
During his press conference, Tong even thanked 350.org and The Sunrise Movement, two other Rockefeller-supported groups that support and actively promote climate litigation.
The lawsuit filed by the Connecticut Attorney General is just the latest case to emerge in the broader, national campaign being pushed by weather donors and activist groups. But while a new lawsuit generates new headlines, it does nothing to change the fact that it’s based on another rehashing of the debunked “Exxon Knew” theory that failed in New York and will do nothing to address climate change.
Background from Previous Post: Climate Lawsuit Dominos
Posted to Energy March 05, 2020 by Curt Levey writes at InsideSources Climate Change Lawsuits Collapsing Like Dominoes. Excerpts in italics with my bolds.
Climate change activists went to court in California recently trying to halt a long losing streak in their quest to punish energy companies for aiding and abetting the world’s consumption of fossil fuels.
A handful of California cities — big consumers of fossil fuels themselves — asked the U.S. Court of Appeals for the Ninth Circuit to reverse the predictable dismissal of their public nuisance lawsuit seeking to pin the entire blame for global warming on five energy producers: BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell.
The cities hope to soak the companies for billions of dollars of damages, which they claim they’ll use to build sea walls, better sewer systems and the like in anticipation of rising seas and extreme weather that might result from climate change.
But no plaintiff has ever succeeded in bringing a public nuisance lawsuit based on climate change.
To the contrary, these lawsuits are beginning to collapse like dominoes as courts remind the plaintiffs that it is the legislative and executive branches — not the judicial branch — that have the authority and expertise to determine climate policy.
Climate change activists should have gotten the message in 2011 when the Supreme Court ruled against eight states and other plaintiffs who brought nuisance claims for the greenhouse gas emissions produced by electric power plants.
The Court ruled unanimously in American Electric Power v. Connecticut that the federal Clean Air Act, under which such emissions are subject to EPA regulation, preempts such lawsuits.
The Justices emphasized that “Congress designated an expert agency, here, EPA … [that] is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions” and better able to weigh “the environmental benefit potentially achievable [against] our Nation’s energy needs and the possibility of economic disruption.”
The Court noted that this was true of “questions of national or international policy” in general, reminding us why the larger trend of misusing public nuisance lawsuits is a problem.
The California cities, led by Oakland and San Francisco, tried to get around this Supreme Court precedent by focusing on the international nature of the emissions at issue.
But that approach backfired in 2018 when federal district judge William Alsup concluded that a worldwide problem “deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” Alsup, a liberal Clinton appointee, noted that “Without [fossil] fuels, virtually all of our monumental progress would have been impossible.”
In July 2018, a federal judge in Manhattan tossed out a nearly identical lawsuit by New York City on the same grounds. The city is appealing.
Meanwhile, climate lawfare is also being waged against energy companies by Rhode Island and a number of municipal governments, including Baltimore. Like the other failed cases, these governments seek billions of dollars.
Adding to the string of defeats was the Ninth Circuit’s rejection last month of the so-called “children’s” climate suit, which took a somewhat different approach by pitting a bunch of child plaintiffs against the federal government.
The children alleged “psychological harms, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property” and sought an injunction forcing the executive branch to phase out fossil fuel emissions.
Judge Andrew Hurwitz, an Obama appointee, wrote for the majority that “such relief is beyond our constitutional power.” The case for redress, he said, “must be presented to the political branches of government.”
Yet another creative, if disingenuous, litigation strategy was attempted by New York State’s attorney general, who sued ExxonMobil for allegedly deceiving investors about the impact of future climate change regulations on profits by keeping two sets of books.
That lawsuit went down in flames in December when a New York court ruled that the state failed to prove any “material misstatements” to investors.
All these lawsuits fail because they are grounded in politics, virtue signaling and — in most cases — the hope of collecting billions from energy producers, rather than in sound legal theories or a genuine strategy for fighting climate change.
But in the unlikely event these plaintiffs prevail, would they use their billion dollar windfalls to help society cope with global warming?
It’s unlikely if past history is any indication.
State and local governments that have won large damage awards in successful non-climate-related public nuisance lawsuits — tobacco litigation is the most famous example — have notoriously blown most of the money on spending binges unrelated to the original lawsuit or on backfilling irresponsible budget deficits.
The question of what would happen to the award money will likely remain academic. Even sympathetic judges have repeatedly refused to be roped by weak public nuisance or other contorted legal theories into addressing a national or international policy issue — climate change — that is clearly better left to elected officials.
Like anything built on an unsound foundation, these climate lawsuits will continue to collapse.
Curt Levey is a constitutional law attorney and president of the Committee for Justice, a nonprofit organization dedicated to preserving the rule of law.
Update March 10
Honolulu joins the domino lineup with its own MeToo lawsuit: Honolulu Sues Petroleum Companies For Climate Change Damages to City
Honolulu city officials, lashing out at the fossil fuel industry in a climate change lawsuit filed Monday, accused oil producers of concealing the dangers that greenhouse gas emissions from petroleum products would create, while reaping billions in profits.
The lawsuit, against eight oil companies, says climate change already is having damaging effects on the city’s coastline, and lays out a litany of catastrophic public nuisances—including sea level rise, heat waves, flooding and drought caused by the burning of fossil fuels—that are costing the city billions, and putting its residents and property at risk.
“We are seeing in real time coastal erosion and the consequences,” Josh Stanbro, chief resilience officer and executive director for the City and County of Honolulu Office of Climate Change, Sustainability and Resiliency, told InsideClimate News. “It’s an existential threat for what the future looks like for islanders.” [ I wonder if Stanbro’s salary matches the length of his job title, or if it is contingent on winning the case.]