Colorado taxpayers, especially those in Boulder and San Miguel counties, might want to ask how much of their money is being spent pursuing climate lawsuits against oil companies, now that it’s clear those lawsuits are headed nowhere.
The “Exxon Knew” strategy began with a highly-publicized press conference by then-New York Attorney General Eric Schneiderman. He accused ExxonMobil of knowing decades ago that they were causing global warming, knowing it could destroy the Earth’s ability to sustain life, and hiding those facts from investors. ExxonMobil is not unique among oil companies, but it has the deepest pockets, so it was the chosen target. The strategy was to use the same organized-crime racketeering laws that killed Big Tobacco 20 years ago.
Those laws were written to prosecute the mob, but states (including Colorado) claimed tobacco companies had engaged in a decades-long conspiracy to mislead the public about the risks of smoking. It was true, so the strategy worked, and the resulting $200 billion in fines essentially killed the tobacco industry, now less than a shadow of its once gargantuan political power. So the enviro-liberal donors at the Rockefeller Fund reasoned that maybe they could kill big oil the same way. They bankrolled the litigation efforts of Schneiderman and several others — including a nearly identical lawsuit by the city of Boulder, Boulder County, and San Miguel County.
The New York case came to trial first, so it is instructive for the others. New York spent four years, subpoenaed four million documents, spent hundreds of hours deposing potential witnesses, and found absolutely nothing on which to base the bizarre theory. Thus, the “Exxon Knew” allegation was replaced with a charge that the company misled its own investors. When that couldn’t be proved, it was replaced with charges about the company’s accounting practices — how it applied the “proxy cost of carbon” to financial statements.
The case finally went to trial in October, and after three weeks several reporters called it an embarrassment for the state, ending in dismissal last week by the presiding New York Supreme Court justice. He concluded that the state had not come close to proving ExxonMobil deceived or misled anyone.
The state could not produce a single investor claiming to have been misled. The judge had little choice but to find, “In sum, the Office of the Attorney General failed to prove… that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.”
One of Boulder’s lawyers has already said this setback will not affect their lawsuit, because they’re reverting back to the “Exxon Knew” theory. But as the New York case showed, that cannot be proven in court, for one simple reason.
Exxon cannot possibly have known decades ago what the scientific world still does not know for certain today.
Clearly, manmade emissions affect air quality and other aspects of the environment. But whether or not carbon dioxide can actually alter the global climate and cause catastrophic sea level rises — as claimed by New York, Boulder, and others — remains a matter of intense study, contentious debate, and highly emotional rhetoric. Many leaders say it is a matter of “settled science,” but it is clearly not a matter of “settled law.”
Boulder’s claim is especially unconvincing, because oceans rising a few inches could hardly impact a city 5,340 feet above sea level. No wonder Colorado leaders have been skeptical. Govs. John Hickenlooper and Jared Polis, and State Attorney General Phil Weiser, all liberals, declined to endorse the lawsuit.
They understand the vast difference between the tobacco and oil cases. The tobacco industry conspired for 50 years to hide something we all know, that smoking is disastrous to public health. Many Americans, though, remain unconvinced of their relationship to the climate. Voluminous research, on both sides of the issue, is still underway. Public opinion is divided, as are political parties and legislative bodies.
The Colorado plaintiffs, salivating for their piece of the anticipated multibillion-dollar settlement, argue that they must spend money to address climate change caused by emissions from fossil fuel producers. They do not explain what impacts are specific to Boulder or Telluride, or how that has cost extra money. If this is all about money — which it is — then taxpayers are entitled to answers, too.
Two “expert witnesses” billed New York $800,000 for their (unproductive) time. Since 2015, that state has spent — not gained — untold millions on a case that was never going anywhere. Do Boulder and San Miguel counties really want that same distinction?
Greg Walcher is president of the Natural Resources Group and author of “Smoking Them Out: The Theft of the Environment and How to Take it Back.” He is a Western Slope native.