A recent Climatewire profile republished by Scientific American puts the spotlight back on how activists are trying to use the developing body of research over extreme weather events and climate change to hold manufacturers legally responsible for historical emissions. Doing so, they believe, will help drive their political agenda through the courts, a strategy that stands to line the pockets of activists and their lawyers, but won’t mean much in the race to address the climate challenge.
It’s no surprise that the Climatewire piece features Myles Allen, one of the central figures behind this campaign. He has received plenty of attention before, including a New Scientist profile back in October titled, “I want to show the courts who’s to blame for climate change.” Allen’s work is funded by several wealthy anti-fossil fuel foundations, and he attended the now infamous 2012 La Jolla Conference where the activist litigation playbook was born.
As the Climatewire article reports, Allen first got the idea of going after manufacturers back in 2003 when he was told it would be “impossible to attribute this particular event [floods in southern England] to past emissions of greenhouse gases.” Allen disagreed. According to Climatewire, Allen saw “the possibility of massive class-action lawsuits—carrying the potential for ‘up to six billion plaintiffs’ around the world—attempting to hold greenhouse gas emitters liable for damages.”
It was several years later that Allen would attend the exclusive summit of anti-fossil fuel activists in La Jolla, California, where they would lay out their plans to take down energy manufacturers. The summit, hosted by the Union of Concerned Scientists and Climate Accountability Institute, was attended by many activists with whom Allen would later co-author several papers that attempt to attribute specific climate damages to individual companies.
One of those activists leading the La Jolla conference was Peter Frumhoff with the Union of Concerned Scientists, an organization which has in recent years strayed from its mission of science-based environmental policy and instead waged a multi-front campaign against energy manufacturers. In 2017, Allen partnered with Frumhoff (as well as fellow La Jolla activists Brenda Ekwurzel and Rick Heede) on a paper allegedly tracing the impact of carbon dioxide emissions back to specific energy manufacturers, which the authors say will allow courts to apportion responsibility for climate damages.
Allen and Frumhoff also authored an op-ed accompanying their 2017 paper titled, “Big Oil must pay for climate change. Now we can calculate how much,” published in The Guardian:
“We have the data needed to link the emissions traced to products sold by a fossil fuel company to a specific share of changes in temperature and sea level rise… [T]his kind of scientific work can help inform public and policy debate over the issue and potentially offers an approach that can help juries and judges to monetize damages in cases like the California communities’ lawsuits.”
Despite Allen and the Union of Concerned Scientists’ clear and stated desire to make manufacturers pay for climate change, legal experts say that their research won’t hold up in court:
“Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law, cautioned that the field [of climate attribution research] likely has some serious maturing to do before it becomes a major tool for climate litigation. There’s no standardized method for conducting all attribution studies, he noted. Different research groups tend to use different models, ask different questions or use different criteria for selecting the events they investigate, making individual analyses difficult to compare.
“‘In court, expert testimony doesn’t need to reflect a consensus view,’ Burger said. ‘It does need to be based, however, on established methodologies. And here, it’s not clear that we’re at the point yet where we have those established methodologies.’”
Attempts like Allen’s to attribute climate damages to specific energy manufacturers are not idle exercises of academic curiosity—this field of study is pursued for the purpose of legally scapegoating the energy industry. But if they succeed, Climatewire warns, these activists will not stop with the energy industry, but instead will move on to other “private companies for failing to protect property, or public infrastructure, against extreme weather in a warming world.”
Most importantly, though, the crusade being waged by Allen, the Union of Concerned Scientists and others won’t actually address climate change. The National Association of Manufacturers believes we should act on climate and manufacturers are actively reducing their own emissions, becoming more energy efficient and embracing sustainability. It is not a productive exercise to seek to legally scapegoat individual companies or industries and, as several courts have already ruled, the courts are not the appropriate place for the issue to be addressed because it is a political question