The Importance of the Courts and the Corrosive Influence of Money and Access
A Honolulu C&C suit against Big Oil hits particularly American roadblocks
(No. 35, a ±09 minute read)
Whose influence will affect the outcome of a critically important climate suit?
In March of 2020 the City and County of Honolulu sued “Big Oil” operating on O‘ahu for the damages caused both by their deceit in obfuscating the consequences of greenhouse gas pollution produced by their products, and those consequences themselves. It is worth quoting the filing:
“Defendants, major corporate members of the fossil fuel industry, have known for nearly half a century that unrestricted production and use of their fossil fuel products create greenhouse gas pollution that warms the planet and changes our climate. They have known for decades that those impacts could be catastrophic and that only a narrow window existed to take action before the consequences would be irreversible. They have nevertheless engaged in a coordinated, multi-front effort to conceal and deny their own knowledge of those threats, discredit the growing body of publicly available scientific evidence, and persistently create doubt in the minds of customers, consumers, regulators, the media, journalists, teachers, and the public about the reality and consequences of the impacts of their fossil fuel pollution.”
This is essentially the same lawsuit that changed the landscape for the tobacco industry — proving that manufacturers knew of and concealed the carcinogenic reality of their products when used as intended. The C&C is seeking compensatory and punitive damages, equitable relief (abatement of the nuisances; i.e. greenhouse gas-instigated global warming effects/damage manifest on O‘ahu), “disgorgement of profits,” legal fees, and “such and other relief as the court may deem proper.”
This, of course, scares the piss out of the defendants.1 As well it should, this is one of an ever-growing list of lawsuits filed across the country against the carbon fuel industry by cities and states, and one of the furthest along through the court system. We in Hawai‘i reside among the U.S.’s coalmine canaries relative to the demonstrable effects of global warming, facing as we do substantial coastal erosion, global warming-compounded wildfire which last year decimated Lāhainā, and increasing drought and nuisance flooding. Honolulu’s standing is in the case is incontrovertible.
The science is settled — and has been for decades — burning carbon-based fuels has caused the crisis we face; a crisis of rising sea levels, dangerously heating atmospheric and oceanic conditions, and increasing risk of weather or climate disasters of unprecedented scope and scale. Profit, as seemingly always for actions driving and exacerbating the climate crisis, is the primary mover of our species’ continuing use of fossil fuels. Extracting and burning carbon fuels is incredibly profitable for the corporations that make up the fossil fuels industries, and we who reside in the developed world profit in our relative comfort by the use of cheap energy to sustain our consumerist culture. This is the fact of our situation — profit has been elevated above our deleterious influence on the earth’s climate systems.
Unfortunately the threat of regulatory impact on pollution-dependent profits has long been recognized by the industries that reap carbon combustion’s financial gains. They have been publishing disinformation for decades, and continue to do so, leaning on First Amendment protections and unpleasant disinformation strategies. A favorable regulatory environment first and foremost relies on popular opinion and fossil fuel corporations seek to win, or at least confuse it.
The industry disinformation campaign has been evident in media advertising since the 1990s (if not earlier), as this exhibit from the C&C lawsuit demonstrates:
It is well-known that the tobacco industry suffered mightily in 1998’s Master Settlement Agreement, assembled with 52 state and territorial attorneys-general as the result of lawsuits against it. The industry was ever-after banned from obscuring tabacco’s health risks (among many other obligations) and it could no longer lie about the consequences of using its products. In 2006 the American Cancer Society again beat the tobacco industry in court when the industry was found guilty of lying about the risks of breathing second-hand smoke. It seems likely that 3M and other manufacturers of PFOS and PFAS chemicals will be facing similar legal consequences as the asbestos industry saw for polluting, incredibly, literally everything, with dangerous “forever chemicals.”
These historical and current examples show both the inclination of harmful industries to lean on deceit to put, and keep, their products in the market; and to lose battles for damages where their deceitful practices are adjudicated in the courts. In light of precedent the Honolulu C&C lawsuit portends possibly disastrous consequences for the carbon fuel industry should it proceeded. The industry systematically denied for decades the science and reality of the greenhouse gas consequences its products created in the course of their ordinary use; even as their own scientists were at the forefront of climate research.
As a legal tactic the defendants have petitioned the U.S. Supreme Court to toss the suit. The court will soon make a decision to do so, or not. Obviously doing so will constitute a substantial protection to fossil fuel players; the system of state courts will be lost to cities and states as a venue for redress for carbon fuel companies’ climate harm which is devastating American cities, state roadways, and public health.
It is not news in the U.S. that corporate interests generally eclipse the interests of the country’s citizenry. A quote from my second reporting trip to Paradise will always haunt me. It was spoken by a fire survivor five years after the Camp Fire destroyed the California town of 26,218. “We can’t stop the corporations doing what they’re going to do,” I was told regarding the fire’s ignition at the hands of a private utility.
And so “corporations doing what they’re going to do,” means their leveraging influence in, and on, the courts in the 2020 case of the C&C of Honolulu vs. Sunoco LP, et al. This for the brazen and irresponsible acts of a fossil fuel industry interested not in corporate responsibility, but in increasing base profit at the expense of both the planet’s climate systems and O‘ahu’s infrastructure and livability.
On Sunday The Guardian published reporting outlining the unprecedented push to influence the U.S. Supreme Court to find in favor of the defendants’ petition to review the state supreme court decision that came down in October of last year which allowed the case to proceed. The defendants’ petition asks the Court to toss the case on the basis that emissions are a federal regulatory purview, not one states should be able to weigh in on. The state of California’s auto emissions requirements show this to be a parlous legal contention and the stakes are incredibly high for the fossil fuel industry. Forty cities and states have filed similar suits seeking damages from the industry for the consequences of global warming.
Left to their devices and facing a potential foundational financial reckoning, the fossil fuel industry is seeking to exert its political influence along the striated party lines that define energy politics in the MAGA era. Current political currents demand that the Republican Party rail against global warming response — the poster child here is Florida governor Ron DeSantis who signed a bill forbidding the state mentioning global warming in its discourse. This as the state suffers deadly record-high temperatures, dying coral reefs, and a national insurance industry increasingly unwilling to write property policies in Florida.
In an op-ed campaign appearing in the Wall Street Journal, Bloomberg Law, the Hill, and the National Review, notable conservatives are working to frame the suit as a separation of powers issue, not a climate crisis culpability issue. This is an ordinary procrastination tactic among today’s conservative intelligentsia who will not go so far as Trump in denying the reality of human-caused global warming. Affecting a “sure, global warming is real but this isn’t the venue to address it; the market will work it out,” posture buys time and protects one of the most powerful (and subsidized) industries in the world — and where a great deal of money supporting conservative candidates and policies comes from.
This market-omniscience/market-shielding tack is commonly seen in fights to water down regulation, as recently occurred relative to rules about the U.S. auto fleet’s efficiency standards. One could be forgiven wondering after last summer (and the forecasts for this one coming) what level of catastrophe is being awaited by carbon fuel industries and their envoys prior to undertaking necessary changes in fossil fuel practices and policies.
At the point the Honolulu C&C suit became a danger to an industry that saw three of its largest players (Exxon Mobil, Chevron, and Shell) book $85.6 billion in profits last year — the hottest since 1850 — it might have become inevitable that the right’s most notable partisan would arrive to thwart the lawsuit’s progression. And he has, The Guardian, and Rolling Stone report Leonard Leo, the architect of the court’s overturning of Roe v. Wade, has joined the fight against the tiny C&C of Honolulu. Leo’s organization, Alliance for Consumers, posted a video on X (previously Twitter) decrying the Honolulu lawsuit — a rare involvement of a national group in anything happening on provincial O‘ahu.
In addition to Alliance for Consumers’ input, there has been filed a friend-of-the-court brief by the Republican Attorneys General Association, RAGA, where Leo is a top funder. It is well worth reading the linked reporting to gain a sense of how pervasively a single individual has set about to influence the business of Honolulu against this case; these aren’t the only examples of Leo’s push against this case.
And the business of Honolulu is increasingly dire, with human-caused sea level rise driving up the tidal water table and damaging utility infrastructure and roadways, drought combined with the departure of plantation agriculture working to increase the likelihood of devastating wildfires, greater incidence of flooding due to changing rain patterns, and ever more threatening tropical heat and humidity.
It is here, with Leo and this suit, the City & County tangles with American capitalism’s preeminence over societal concerns for stability, safety, and self-preservation. In the absence of realistic regulation to control the waste gases of the combustion of carbon fuels, industry is allowed free reign to contribute the significant, principal component to causing O‘ahu’s climate troubles. As such the petroleum industry is allowed to pollute and become obscenely rich as a consequence of its ability to dump waste gases without cost — or meaningful regulatory interference.
In attempting through the court system to assign a cost for the consequences of the local O‘ahu climate crisis — to the agents who delivered the problems — Honolulu runs smack into the market seeking to preserve itself at the cost of those human beings who inhabit the market, and who are foundationally divorced from deciding its outcomes and consequences.
The Supreme Court will now decide how the market’s outcomes and consequences affect us all in the face of corporate interests, by accepting the defendant’s petition to dismiss Honolulu’s case, or dismissing their petition and allowing the state case to proceed. This may be one of the most consequential Court decisions affecting global warming law to date.
What could go wrong?
From the filing: SUNOCO LP; ALOHA PETROLEUM, LTD.; ALOHA PETROLEUM LLC; EXXON MOBIL CORP.; EXXON MOBIL OIL CORPORATION; ROYAL DUTCH SHELL PLC; SHELL OIL COMPANY; SHELL OIL PRODUCTS COMPANY LLC; CHEVRON CORP; CHEVRON USA INC.; BHP GROUP LIMITED; BHP GROUP PLC; BHP HAWAII INC.; BP PLC; BP AMERICA INC.; MARATHON PETROLEUM CORP.; CONOCO PHILLIPS; CONOCO PHILLIPS COMPANY; PHILLIPS 66; PHILLIPS 66 COMPANY