The Empire Strikes Back

Climate activists celebrate last year’s groundswell in lawsuits against oil and gas corporations and some companies that construct pipelines. As of early 2018, some oil majors are fighting back in court, and not just as defendants. In several new cases, oil and gas majors are using “creative lawyering” to attack the same groups who brought them to court in the first place.

Two Exxon suits

The oil industry’s legal tactics, surprising no one, are hardly principled. First, in January Exxon prepared to sue the California cities and counties that brought suits against the company in 2017. Exxon claims that the cities of San Francisco, Oakland, Santa Cruz, and Imperial Beach, as well as Marin and San Mateo Counties, sued Exxon for climate change-related damages while failing to disclose those same risks to bond investors.

Exxon lawyers point to, for example, San Mateo’s bond offerings in 2014 and 2016, in which the county said it was “unable to predict whether sea-level rise or other impacts of climate change…will occur.” But in the county’s suit against Exxon, it said there is a 93% chance of a “devastating” flood in the next several decades. But Exxon ignores some very recent advances in attributing emissions to specific companies. A study released in September 2017 pinned half global warming since 1880 to just 90 companies, including Exxon.

In February Exxon came back with a second suit against its opponents, when the corporation sued some of the lawyers who represent the states of New York and Massachusetts and at least five cities in California. Exxon lawyers have demanded sworn depositions or threatened new law suits against at least thirty people, claiming that the group conspired against the corporation during a planning meeting which took place six years ago in La Jolla, CA. The individuals that Exxon is targeting include the attorneys general of New York and Massachusetts.

Independent observers say it is standard practice for lawyers to meet and coordinate strategy, especially ahead of high-profile corporate cases, and that Exxon is trying to harass its opponents or sow confusion and divert attention from the suits that currently threaten it.

Chevron also scared

Meanwhile, Chevron has taken a different approach to avoiding the legal comeuppance. Mounting its own response to the same spate of suits that target Exxon, Chevron lawyers are trying to implicate even more parties, including car manufacturers and consumers themselves, in producing the emissions that cause global warming. In an unusual legal move, Chevron sued the Norwegian oil major Statoil in February, claiming that it, too, should pay its fair share of damages if the oil industry loses this round of court battles.

Julia Olson, chief legal counsel for Our Children’s Trust (the group which has sued the U.S. federal government for violating citizens’ constitutional rights to life and liberty by failing to act on climate change), has said that adding a foreign company to the suit is an attempt to keep the cases in federal court and out of state courts, where the oil industry is more likely to be found liable. An environmental law professor speculated that by adding an international defendant, Chevron might be giving federal courts reason to dismiss the cases. A federal judge in San Francisco whether the cases should stay there.

Political maneuvering?

Analysts and lawyers commenting on these recent countersuits agree that they are diversionary tactics or last-ditch stunts to avoid bad press and possible serious legal repercussions. Big oil’s lawyers, on the other hand, claim that the companies they represent are being unfairly slammed by politicians and activists pushing an environmental agenda. They are likely correct on that count—but it’s right-wing politicians in the pocket of corporate oil money who made addressing climate change an issue of politics rather than common sense.

Other disturbing developments

Finally, the oil industry is fighting back not just in court but in the legislative branch as well. Last month, Wyoming joined Iowa and Ohio as the third state with a bill that would criminalize the kind of protests seen last year against the Dakota Access Pipeline. These bills are sponsored by the American Legislative Exchange Council, or ALEC, an industry mouthpiece for deregulation and are so egregious that, according to Desmog Blog, even an attorney who represents the oil and gas calls them appeals “to the absolute worst instincts of power.”