Lawsuits in USA testing “attribution science.” Researchers can link weather events to emissions and companies responsible. “This body of literature…tells us that dangerous climate change is upon us, and people are suffering and dying…and it’s going to get worse.” For any potential uncertainty about climate attribution, there’s at least one truth that should override the rest: Fossil fuel companies “were aware decades ago what trouble climate change would be.”

The new science fossil fuel companies fear, Researchers can now link weather events to emissions – and to the companies responsible. A string of lawsuits is about to give “attribution science” a real-life test by Zack Colman, Oct 22, 2019, Politco.com

Richard Heede spent a decade digging through “disheveled, dusty” tomes in libraries around the world searching for the answers he thought could help save humanity.

The Norway-born academic’s task was direct, but far from simple: Find out how many greenhouse gases the world’s fossil fuel companies, cement-makers and other industrial giants had pumped into the atmosphere since the Industrial Revolution. A geographer by training, he tagged library visits onto work trips to pore over annual company and shareholder reports. (“Nobody had seen them for decades,” he recalled.) He painstakingly traced mergers and acquisitions as companies morphed and amalgamated. He enlisted volunteers across the globe.

Like most analysts, Heede started his work on climate change focused on what individual consumers could do to reduce their emissions. After all, it was the consumer who was “consuming” the product and actually releasing the emissions from the oil, gas or coal. But over time, he recognized there was a flaw in that approach: Individual consumers can make choices only among what’s already on the market — but who decided what was on the market? Other, larger forces had shaped an economy dependent on fossil fuels, he realized — companies who developed the markets for fossil fuels and influenced decisions to build the infrastructure that supported them.

He asked himself: Shouldn’t the companies who profited from those decisions play a role in mitigating them? With world governments making little progress toward reducing emissions, perhaps pressuring the companies whose products were causing the harm might have more effect?

“With federal policy being unsupportive and still emphasizing continued energy development, I just thought it would be a new lever to look at the companies that have their hand on the tiller,” said Heede, who now lives in Colorado. “And pressure can be exerted in a number of ways.”

By 2013, roughly a decade after Heede began his search, he had his answer: Just 90 companies had contributed nearly two-thirds of the world’s industrial emissions. He could even pinpoint the share of those emissions for which companies existing today are responsible.

In effect, Heede had established a pillar of a new field of research, now known as attribution science. But it wasn’t just an academic exercise: It’s a weapon that climate campaigners are starting to wield to put fossil fuel companies on the hook for billions of dollars in damages. It’s a kind of end run around a political system they see as forced into gridlock by fossil fuel industry influence.

Heede and his collaborators are part of a paradigm shift in how to assign blame for climate change. For decades, as signs have grown that the planet is warming, the public and defenders of industry have laid the blame on end users, the ordinary people who drove their cars too much or blasted air conditioning in their homes. Those add up.

But attribution science has the effect of moving the blame back one step, away from consumers and onto the companies that extracted the oil, coal and gas that have powered our planet for decades.

If blame can be attributed to corporations or governments, they believe, it can have two powerful effects: create a strong incentive for those companies to once and for all move away from fossil fuels, and unleash — through lawsuits — financial resources that could be used to seed new technologies and better prepare communities for the calamities climate change is expected to bring.

Attribution science is now about to receive a very real test in the courts, as cities, states and ordinary citizens across the world are using it to try to send fossil fuel companies the bill for climate change damage.

The first lawsuit over what fossil fuel companies revealed about the costs of climate change comes from the New York attorney general, who has accused Exxon Mobil of securities fraud. The suit alleges that Exxon used a different internal estimate for the cost that carbon-reduction policies would have on its business than it told investors; oral arguments for that case begin this week.

“I didn’t know that the legal interest would pick up so fast,” Heede said in an interview. “I didn’t know how this data was going to be used. But I knew that for any legal action — or, for that matter, shareholder pressure or regulatory pressure — we had to know who the companies were and what they contributed.”

ATTRIBUTION SCIENCE originated with the very legal question it might now be used to address.

In 2003, the science journal Nature published an article by Oxford University scientist Myles Allen titled “Liability for climate change.” Allen wondered aloud how to solve “the attribution problem” to demonstrate precisely how much burning fossil fuels were responsible for worsening climate-linked developments. If one could do that, he surmised, it would be possible to sue fossil fuel companies for damages.

A year later, Allen and colleagues Dáithí Stone, Peter Stott and Mark Hawkins published the first “extreme event attribution” study. Using computer models, they compared human-caused, post-Industrial Revolution emissions with scenarios lacking such emissions, known as natural variability. They concluded that man-made greenhouse gas emissions had more than doubled the likelihood of the deadly European heatwave of 2003, which killed 27,000 people. The analysis was straightforward and remains the bedrock of extreme event attribution science.

In the years that followed, more severe weather patterns followed, including Superstorm Sandy on America’s Eastern Seaboard in 2012. Weather forecasters cited in media reports tended to be uncomfortable linking these events to climate change, often saying it was hard to connect individual weather events to an overall pattern of global warming.

But the emerging attribution scientists didn’t agree. In 2015, Fredi Otto, acting director at the Environmental Change Institute at Oxford University, and Heidi Cullen, a climate scientist who is now at the Monterey Bay Aquarium Research Institute, formed the World Weather Attribution group with the goal of providing “rapid response” analysis of climate-fueled disasters. They wanted to show just how much human emissions had worsened those events or made them likelier to occur.

“We got pushback from the scientific community saying, ‘Well, actually this is way too fast. You can’t do science so fast, and the models are not good enough,’” said Otto, who did her postdoctorate work under Allen.

Skeptics have since mostly dissipated, though some remain. The Bulletin of the American Metereological Society began publishing annual event attribution analyses in 2011. Reruns of the World Weather Attribution analyses confirmed the group’s initial efforts. It helped that the National Academy of Sciences wrote a 2016 report on climate attribution science and identified World Weather Attribution’s methods as the gold standard. Last year, the European Union’s Copernicus Climate Change Service asked World Weather Attribution to write a road map to operationalize the science so it can better predict and respond to disasters; a prototype could launch this fall.

On top of that, computer modeling vastly improved, and quickly, permitting the volume and sophistication required for World Weather Attribution group’s mission. Michael Wehner, a scientist at Lawrence Berkeley National Laboratory, said he today could complete his study of the devastating 2013 Colorado floods in a matter of days, whereas the original study took his team three years.

He has since expanded his work to hurricanes, finding that human-driven climate change boosted Hurricane Harvey’s August 2017 rainfall by as much as 38 percent.

“Read the papers. If you don’t believe the papers, then do your own,” Wehner said of attribution science critics.

“This body of literature, which is now fairly large, clearly tells us that dangerous climate change is upon us, and people are suffering and dying — and it’s real, and it’s going to get worse.”

Some scientists aren’t yet ready to fully embrace extreme event attribution science. The reinsurance industry, which covers megalosses in the event primary insurers can’t foot the bill, contends other factors like building codes and zoning decisions contribute a great deal to the overall financial toll from major disasters.

“We follow the science very closely. We try to understand what this actually means to the risk which we are taking. But when it really comes down to attribution of certain events to climate change, our view is that this piece of science is at an early stage,” said Ernst Rauch, chief climate scientist and global head of climate and public sector business development with Munich Re, a reinsurance company.

Even the National Academy of Sciences in its 2016 report sounded a cautionary note. Finding the precise climate fingerprint for events with nonmeteorological factors, such as drought and wildfire, can be challenging. Events backed up by robust observational records with well-understood physical effects, like long-term temperature increases, are most scientifically sound.

“The ability to attribute the causes of some extreme event types has advanced rapidly since the emergence of event attribution science a little more than a decade ago, while attribution of other event types remains challenging,” the report said.

For any potential uncertainty about climate attribution, Heede said there’s at least one definite truth about fossil fuel companies that should override the rest.

“They were aware decades ago what trouble climate change would be,” he said.

WHILE THE CLIMATE science community was initially cautious about attribution science, lawyers were immediately intrigued.

“I think they recognized that it was a bit of a game-changer,” said Cullen, the climate scientist.

The two scientific breakthroughs – the ability to link global warming to the intensity of storms, rising sea levels and worsening heatwaves combined with the ability to trace historical emissions to individual companies dating back to the Industrial Revolution — have laid the legal groundwork for a string of lawsuits getting underway in coming months.

“We can actually close this causal chain now,” said the Environmental Change Institute’s Otto .

“If the first judge has the guts to actually accept such a claim and give a verdict against a big polluter, then that will force these companies to change their business models.”

So far, 13 state and local governments have filed lawsuits against oil and gas companies like Exxon Mobil, BP and ConocoPhillips, including the cities of New York, Baltimore, Oakland, San Francisco and Richmond; Imperial Beach and Santa Cruz, Calif.; the counties of Marin, San Mateo and Santa Cruz, Calif.; King (Wash.) and Boulder (Colo.); and the state of Rhode Island. Another lawsuit by Pacific Coast fishermen against Chevron also seeks climate damages.

Fossil fuel companies have successfully swatted away past cases, all of which have been federal, in part because the courts say Congress has responsibility for regulating greenhouse gas emissions, but Congress hasn’t yet amended the 1990 Clean Air Act to incorporate concerns about climate change. So, climate cases get stuck.

The novel legal innovation this time is that plaintiffs are aiming to sue in state courts. States have common law provisions that allow for claims under two legal theories: public nuisance, that a party is interfering with the rights of citizens, or product liability, that the dangers of using a product must be communicated to the public. Plaintiffs are trying to make the case that energy companies that extract, transport or market fuels are a public nuisance because they are destroying their residents’ enjoyment of a stable climate and forcing costs on them. Under product liability, plaintiffs are arguing that the companies pushed those products into the market knowing these probable, damaging outcomes.

The lawsuits have caught the attention of business groups like the U.S. Chamber of Commerce, which penned two white papers outlining the threats to corporations presented by public nuisance lawsuits in nonfederal courts.

But the courts have so far rebuffed fossil fuel companies’ attempts to punt the cases to federal jurisdiction.

The lawsuits aren’t all the same. Some cities are suing over past and future costs to defend against sea level rise; fishermen want compensation for harming a West Coast crab fishery; suits filed on behalf of children contend fossil fuel companies deprived future generations’ quality of life by driving climate change.

Most of the lawsuits argue that fossil fuel companies marketed a product they knew to be harmful without acknowledging — and, in fact, sowing doubt and confusion about — those harms.

Plaintiffs see a parallel to the tobacco industry. That industry fell victim to product liability lawsuits because companies knew their product caused harm but misled the public. More contemporary examples of successful lawsuits include a case against Monsanto for cancer linked to its weed-killer, Roundup, and action against pharmaceutical companies for distributing opioids despite known risks and abuse.

Fossil fuel companies have argued that they had no control over how their product was used after selling it — it’s people who put gasoline in their cars, not Exxon Mobil. They are also expected to argue that all levels of government have cemented fossil fuels’ place in American society through tax incentives, infrastructure spending and other policies. That is the crux of what the companies argued in a federal case in the U.S. District Court for the Northern District of California brought in 2017 by the cities of Oakland and San Francisco.

“Plaintiffs do not assert that the mere extraction or sale of fossil fuels created the alleged nuisance (nor could they), but rather that the combustion of fossil fuels by third-party users — such as Plaintiffs themselves — causes global warming and rising seas,” attorneys for BP, Chevron, ConocoPhillips, Exxon Mobil and Shell wrote in a March 2018 motion to dismiss.

The federal case ultimately was dismissed, but Oakland and San Francisco are appealing.

“They will try to claim the harm from their product is not at all their responsibility,” said Peter Frumhoff, science director with the Union of Concerned Scientists, who helped develop the framework for using climate attribution science in the courts. “It’s always somebody else, isn’t it?”

While the novel legal arguments might face an uphill battle, they’re already affecting the court of public opinion — and in that venue, the plaintiffs seem to be winning.

Scientists reveal how the fossil fuel industry misled the public about climate change Press Release by University of Bristol, Oct 21, 2019

An international group of scientists show that fossil fuel corporations have, for decades, denied the public’s right to be accurately informed about climate change by funding efforts to deceive people about the dangers of their product. A report illustrating how the industry “polluted the information landscape,” and how the damage could be undone is published today.

The report entitled, ‘America misled: how the fossil fuel industry deliberately misled Americans about climate change’, by academics from the universities of Bristol, UK; George Mason, U.S. and Harvard, U.S., summarizes more than a decade of peer-reviewed research, and has been published to help inform policymakers, journalists, and the public.

The report includes what the fossil fuel industry knew versus what they did, the arguments they used to seed doubt in the public, the techniques they used to create those arguments, and some strategies for combating them.

The key points in the report are:

  1. Internal corporate documents show that the fossil fuel industry has known about human-caused climate change for decades. Its response was to actively arrange and fund denial and disinformation to suppress action and protect its status quo business operations.
  2. As the scientific consensus on climate change emerged and strengthened, the industry and its political allies attacked the consensus and exaggerated the uncertainties.
  3. The fossil fuel industry offered no consistent alternative explanation for why the climate was changing—the goal was merely to undermine support for action.
  4. The strategy, tactics, infrastructure, and rhetorical arguments and techniques used by fossil fuel interests to challenge the scientific evidence of climate change—including cherry picking, fake experts, and conspiracy theories—come straight out of the tobacco industry’s playbook for delaying tobacco control.
  5. Informing the public about how these arguments are deceptive not only begins to correct the misconceptions, but also will make it harder for future campaigns to use these misleading tactics to confuse the public.

Professor John Cook, at the Center for Climate Change Communication at George Mason University, added: “Exposing and explaining the techniques used to mislead are key to inoculating the public from further industry-funded disinformation.”

Geoffrey Supran, Research Associate in the Department of the History of Science at Harvard University, explained:

“For 60 years, the fossil fuel industry has known about the potential global warming dangers of their products. But instead of warning the public or doing something about it, they turned around and orchestrated a massive campaign of denial and delay designed to protect profits. The evidence is incontrovertible: Exxon misled the public. Like all bad actors, they should be held accountable.”

Later this week [Wednesday 23 October], the People of the State of New York will face Exxon Mobil Corporation in court. While the legal proceedings are complicated, the academics state they are underpinned by a simple truth: for decades, ExxonMobil and other fossil fuel corporations funded efforts to deceive the American people about the dangers of their product.

Report:

Cook, J., Supran, G., Lewandowsky, S., Oreskes, N., & Maibach, E., (2019). America misled: how the fossil fuel industry deliberately misled Americans about climate change.
Fairfax, VA: George Mason University Center for Climate Change Communication.
Available at https://www.climatechangecommunication.org/america-misled/

Here’s What You Need To Know About Today’s Historic Climate Fraud Case Against Exxon, “Exxon has been working very hard to prevent this day from ever happening,” said one legal expert by Zahra Hirji and Dan Vergano, October 22, 2019, buzzfeednews.com

The New York attorney general is taking ExxonMobil to trial in a historic case Tuesday, accusing the oil giant of misleading investors about the company’s financial risks due to climate change.

Under the direction of Attorney General Letitia James, this is the first climate fraud lawsuit to go to trial in the United States. James is acting under New York’s Martin Act, a 1921 anti-fraud law meant to protect investors against false statements, even ones made without proof of intent to deceive.

The historic lawsuit comes as more and more legal action is being taken against Exxon and other fossil fuel companies by cities and states seeking to hold them accountable for their contribution to climate impacts.

The trial, which will take place before the judge and not a jury, will begin Tuesday at 2:15 p.m. EDT in the New York Supreme Court, and could last up to three weeks. Climate activists plan to rally outside the court ahead of the trial to draw attention to it. … New York prosecutors began their investigation about four years ago and sued Exxon last October. …

The investigation followed parallel investigations by InsideClimate News and the Los Angeles Times showing how the oil company’s own researchers confirmed that fossil fuels have contributed to global warming in the 1970s and 1980s. (Subsequent reporting revealed oil researchers were studying climate change back in the 1950s.) The information about Exxon’s climate research threw the company’s later efforts to cast doubt on climate science and fund misinformation campaigns into sharp focus.

“Exxon has been working very hard to prevent this day from ever happening,” Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, told BuzzFeed News. They’ve brought lawsuits in both federal court and state court to halt or delay action on the investigation, and waged a public relations campaign, he added.

The allegations, explained

The crux of this Exxon case hinges on whether they were keeping “two sets of books,” said climate activist Kert Davies, who helped expose Exxon’s past funding of climate denial. This would portray climate risk to shareholders “differently in public than they are behind closed doors.”

The New York attorney general declined to comment, instead pointing BuzzFeed News to a pretrial memo filed on Oct. 7 that spells out Exxon’s alleged deceit. In anticipation that governments would adopt aggressive new climate policies including charging companies for their climate pollution, such as carbon dioxide, Exxon said in public disclosures that it was accounting for how a warming world threatened the business.

Specifically, Exxon disclosed to investors “that it was applying a cost of carbon approaching $80 per ton across its business to account for that risk,” per the memo. “But ExxonMobil did no such thing. For many years, ExxonMobil’s undisclosed internal guidance directed its employees to apply a far lower cost of carbon than the company purported to use.”

By claiming to use a higher carbon cost than it actually was, “ExxonMobil made its assets appear significantly more secure than they really were, which had a material impact on its share price,” according to the memo. The New York attorney general estimates the damage to Exxon shareholders ranges from about $476 million to $1.6 billion. [and the damage in dollars to life on earth?]

At trial, Exxon is expected to acknowledge it had two sets of carbon costs but will argue investors should have known this and how the different prices were used based on disclosures.

What’s at stake?

If Exxon loses this case, they’ll have to pay damages to the state of New York. But the company has to worry about more than a payout and a hit to its reputation. Exxon could also face additional legal challenges from other states, and possibly even at the federal level, according to Mark Latham of Vermont Law School.

The fallout could impact many other companies, too. “It’s a big deal,” said Latham, adding that any company “that generally downplayed the risk of climate in public documents they disclosed to the US Securities and Exchange Commission and others” would be at risk of future litigation if Exxon loses.

Lawsuits on lawsuits on lawsuits

Thematically, the case is similar to the “public nuisance” cases filed by cities and states against Exxon and other energy companies over the costs of climate change, David Bookbinder, chief counsel of the Niskanen Center environmentalist think tank, told BuzzFeed News.

But the New York case only involves Exxon’s conduct after 2010. “That’s very different, and might be critical,” said Bookbinder, who was the chief climate counsel for the Sierra Club in the 2007 Supreme Court case, Massachusetts vs. EPA, that ruled carbon dioxide was a pollutant under the federal Clean Air Act.

In 2015, the New York attorney general settled with Peabody Energy, a coal company, over its public pronouncements that it was unable to forecast the impact of future environmental regulations on its business. At the same time, the company was shown to be making those forecasts internally and withholding them in their filings. The case is seen as a template for the Martin Act case against Exxon.

“Documents have a tendency to lead to other documents,” said Bookbinder. “It’s possible the documents in this case might tell us about what companies earlier knowledge before 2010, which might play a role in the other lawsuits looking at earlier times.”

Massachusetts Attorney General Maura Healey has also been investigating whether Exxon deceived investors on climate risk, and is looking to soon take legal action of its own, according to Bloomberg Environment.

In an Oct. 10 letter, the state attorney general’s office wrote Exxon to alert them the office “intends to commence an action against ExxonMobil for violations” of the Massachusetts Consumer Protection Act. The company is trying to delay Healey’s efforts and reportedly accused her team of distracting the company while it prepares for the New York trial.

Exxon’s checkered climate past

By the late 1980s, every major oil company understood the risk of global warming was coming, and that its advent promised regulations imperiling investments in fossil fuels, science historian Spencer Weart, author of The Discovery of Global Warming, told BuzzFeed News.

“They made a decision then, the wrong decision, to discredit an entire scientific discipline, climate science, and by extension all physical science, rather than tell investors and everyone else the truth,” Weart said.

Internal Exxon memos have shown the company’s marketing strategy involved publicly casting doubt on the science, such as placing a full-page advertisement in the New York Times titled “Unsettled Science,” according to the new report “America Misled” by climate communication and historian researchers from George Mason University, Harvard University, and the University of Bristol. Meanwhile, the company privately funded climate denial campaigns, bankrolling advocacy groups that sought to cast uncertainty over climate science, even after pledging to stop funding climate deniers.

“We know that this was deliberate,” Naomi Oreskes, a professor of the history of science at Harvard University and co-author on the recent report, told BuzzFeed News by email. “Given multiple opportunities to correct the record, they declined those opportunities, and continued business as usual.”

Fossil Fuels on Trial: New York’s Lawsuit Against Exxon Begins by John Schwartz, Oct. 22, 2019, The New York Times

The case turns on the claim that Exxon kept a secret set of financial books that seriously underestimated the costs of potential climate change regulation while claiming publicly that it was taking such factors into account. It follows a sprawling investigation that included millions of pages of documents and allegations of a chief executive’s secret email account.

In his opening statement, Kevin Wallace, a lawyer with the New York Attorney General’s office, argued that “the gap between what Exxon said it was doing and was actually doing was significant, and had an impact on the bottom line.”

Refer also to:

Texas Judge Rules ‘The Sky Belongs To Everyone’

The lawsuit argued, “The atmosphere, including the air, is one of the most crucial assets of our public trust….Global climate change threatens to dry up most of these waters, turning them from gorgeous, life-giving springs into dangerous flash-flooding drainages when the rare, heavy rains do come. The outdoors will be inhospitable and the children will have few places to recreate in nature as the climate changes. They will be living in a world of drought, water shortages and restrictions, and desertification.”

The TCEQ argued the public trust doctrine applies only to water.

Judge Gisela Triana, of the Travis County District Court disagreed. Her letter decision, issued on July 12, 2012 stated, “[t]he doctrine includes all natural resources of the State.”

The court went further to argue that the public trust doctrine “is not simply a common law doctrine” but is incorporated into the Texas Constitution, which (1) protects “the conservation and development of all the resources of the State,” (2) declares conservation of those resources “public rights and duties,” and (3) directs the Legislature to pass appropriate laws to protect these resources. … But a few days after Judge Triana’s ruling, Judge Sarah Singleton of the New Mexico District Court denied the state’s motion to dismiss a similar case.

Judicial Tragedy: U.S. District Judge William Alsup wanted to “stick to the science” and avoid politics, presided over standing room only tutorial on climate change, but let big oil off using politics. Science is on humanity’s side, the law is not.

Rhode Island vs 21 Oil & Gas Companies: Judge William Smith characterized operations “leading to all kinds of displacement, death (extinctions, even), and destruction….Defendants understood the consequences of their activity decades ago…. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes – however existentially necessary – that would in any way interfere with their multi-billion-dollar profits.”

Pennsylvania Supreme Court Says It’s Unconstitutional For Gas Companies To Frack Wherever They Want; Act 13, Gas Industry Takeover Law thrown out by State’s Highest Court

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”

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