by Spencer Walrath
A federal judge in Boston dealt a major blow yesterday to environmental activist groups seeking to sue fossil fuel companies for supposedly ignoring the risks of climate change. The Conservation Law Foundation (CLF) had sued ExxonMobil for allegedly failing to sufficiently prepare a facility in Everett, Mass., for the effects of climate change, including sea level rise and more frequent and severe storms. CLF is yet another Rockefeller bankrolled organization that is closely tied in with the #ExxonKnew campaign.
U.S. District Court Judge Mark Wolf allowed ExxonMobil’s motion to dismiss to proceed, in part. Wolf repeatedly suggested that CLF was unnecessarily injecting climate change into its complaint, to the detriment of the group’s own argument. As Wolf saw it, the case is about whether ExxonMobil has violated the terms of its permit from the U.S. Environmental Protection Agency (EPA), and he thus ordered CLF to refile its complaint with the references to climate change removed.
Wolf made clear that in order for CLF’s claims to stand, the organization needed to show that ExxonMobil had either caused harm to the plaintiffs or that harm was “imminent.” The CLF complaint was filled with references to the projected effects of climate change by 2050 or 2100, which the judge said didn’t qualify as imminent. He suggested that if the plaintiffs were concerned about the effects of climate change on the facility in 2050, they should refile their case in 2045.
Sensing that the judge wasn’t going to let them sue ExxonMobil based on climate change, CLF’s lawyers shifted gears early on in the hearing and scrambled to portray their case in a way that didn’t rest on climate change, and was instead about supposed violations of an EPA permit. This change in tactics made clear that CLF – as is always the case with the #ExxonKnew coalitions – isn’t suing ExxonMobil because of climate change. Instead, CLF and others are suing ExxonMobil because it’s ExxonMobil; they will say and do whatever it takes to notch a win against the industry.
The same could be said of New York Attorney General Eric Schneiderman, who has changed the focus of his own ExxonMobil investigation at least three times, shifting from what ExxonMobil knew about climate change, to what it predicted, to what it supposedly failed to predict. Schneiderman, CLF, and the rest of the #ExxonKnew campaigners are all working backward from their assumption that ExxonMobil must be guilty of something – they have the verdict, now they just need the evidence.
Curiously, every time their core arguments are disproven, they change the narrative and pretend the case is still valid. After reading through millions of pages of internal company documents and pursuing every avenue available to them, Schneiderman and others still have not been able to find any evidence of wrongdoing or fraud.
Meanwhile, the about-face by CLF in the hearing prompted one of ExxonMobil’s lawyers to remark that “something extraordinary happened here today.” Even Judge Wolf commented that CLF’s argument was “evolving” and “shrinking” to a point where it was no longer about climate change, even though climate change was the focus of the organization’s complaint.
Indeed, CLF has repeatedly made clear over the past year and a half that its case was always primarily about climate change. The group’s press release announcing its intent to sue was titled “CLF Sues ExxonMobil Over Decades-Long Climate Deceit.” CLF’s 70-page complaint mentions “climate change” 95 times – more often than it mentions “pollution” or the Clean Water Act.
By mid-afternoon, the judge had made clear that he didn’t want this to become “the Scopes Monkey Trial of the 21st Century” and expressed umbrage at the media attention the case had received. Once it became clear he wasn’t going to allow the case to proceed with the climate change arguments intact, several people supporting CLF left the courtroom.
The organization faces an uphill battle as it amends its complaint to focus on alleged harm to its members, be it current or six decades from now. CLF’s lawyer breezed through most of his points, seemingly realizing as he tried to explain them to the judge that CLF’s accusations were ridiculous and predicated on hypothetical impacts in the future, rather than imminent harm.
It’s worth remembering that CLF is an active participant in the #ExxonKnew campaign. Last year CLF received $250,000 from the Rockefeller Family Fund, one of the groups bankrolling the #ExxonKnew effort. CLF president Bradley Campbell attended a secret meeting with other #ExxonKnew activists at the offices of the Rockefeller Family Fund in January 2016 to hash out a plan to, among other things, “establish in public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm.”
That group discussed potential legal actions they could take against ExxonMobil, including working with state attorneys general (they did), the DOJ (they tried), and torts (CLF announced its intent to sue shortly after the meeting). They continued:
“Which of these has the best prospects for successful action? For getting discovery? For creating scandal? Shortest timeline? Do we know which offices may already be considering action and how we can best engage to convince them to proceed?” (emphasis added)
Consistent with its campaign, CLF focused on the priorities outlined in this memo at the hearing yesterday. The group’s lawyers made sure to request that any potential future discovery allow for the inclusion of documents relating to climate change. They also pushed back on the judge’s suggestion that they take up their complaint with EPA, retorting that litigation would move faster, though the judge was skeptical of that claim.
“In the case of Exxon, Mr. Campbell enlisted a firm out of Boulder, Colo. called Stratus Consulting to handle much of that work, and boy did it deliver. Stratus consultants never actually visited the sites in question, but based on their desktop research concluded Exxon should pay Mr. Campbell’s office a penalty of about $8.9 billion — for spills Stratus conceded it could neither identify nor date. “
Stratus Consulting is perhaps best known for its role in the fraudulent accusations against Chevron in Ecuador. The firm admitted it knew about attorney misconduct and that pollution claims made against Chevron had no scientific merit.
Undeterred, Campbell’s group repeated its flawed legal tactics in the courtroom yesterday, accusing ExxonMobil of committing hundreds of violations of the Clean Water Act at its Everett facility, a claim ExxonMobil’s lawyers explained was factually inaccurate. CLF even hired the same contingency-fee lawyer they used in 2002, Allan Kanner, to argue the case in court yesterday.
The media has largely portrayed this as a first-of-its-kind case against companies who supposedly have failed to adequately prepare for the effects of climate change, but in the end this judge narrowed the scope of the case so much that it’s likely to slip quietly into obscurity.