Report June 2008

Conspiracy Theory

Climate-change litigation is heating up. Will the legal strategy that brought down Big Tobacco work against Big Oil?
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climate change
SANDBAGS LINE the quickly eroding coast of Kivalina, Alaska, which climate change may soon make uninhabitable.
(Photo by Jan Van Der Woning/TCS/Zuma Press)

During the tobacco wars of the 1990s, attorneys Steve Susman and Steve Berman stood on opposite sides of the courtroom. Berman represented 13 states in what was then seen as a quixotic attempt to recover smoking-related medical costs, and conceived the strategy that would break the tobacco industry’s back: an emphasis on charges of conspiracy to deceive the public about the dangers of cigarettes. Susman had turned down offers to represent Massachusetts and Texas against the cigarette makers; instead he defended Philip Morris—until 1998, when the industry settled for more than $200 billion, the biggest civil settlement ever. Now, a decade later, the two lawyers find themselves on the same side of the aisle, working on a case that seems just as improbable as the ones that brought down Big Tobacco ever did—and with implications that could be at least as far-reaching.

The Eskimo village of Kivalina sits on the tip of an eight-mile barrier reef on the west coast of Alaska. Fierce storms are ripping apart the shores. Residents report sinkholes in nearby riverbanks. Despite emergency erosion-control efforts, the crumbling coast threatens the village’s school and electric plant. In 2006, the U.S. Army Corps of Engineers concluded that Kivalina would be uninhabitable in as little as 10 years, and that relocating its approximately 400 residents would cost at least $95 million. Global climate change, the Corps report said, had shortened the season during which the sea was frozen, leaving the community more vulnerable to winter storms.

As scientific evidence accumulates on the destructive impact of carbon-dioxide emissions, a handful of lawyers are beginning to bring suits against the major contributors to climate change. Their arguments, so far, have not been well received; the courts have been understandably reluctant to hold a specific group of defendants responsible for a problem for which everyone on Earth bears some responsibility. Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels—something best handled by legislatures.

But Susman and Berman have been intrigued by the possibilities. Both have added various environmental and energy cases to their portfolios over the years, and Susman recently taught a class on climate-change litigation at the University of Houston Law Center. Over time, the two trial lawyers have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina—where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village, and Matt Pawa, an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.

Berman and Susman aren’t alone in drawing parallels between the actions of the defendants and those of the tobacco industry. The Union of Concerned Scientists, an environmental advocacy group, has accused Exxon­Mobil of adopting the cigarette manufacturers’ strategy of covertly establishing “front” groups, promoting writers who exaggerate uncertainties in the science, and improperly cultivating ties within the government. The oil company, it says, has “funneled approximately $16 million to carefully chosen organizations that promote disinformation on global warming.”

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