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Major Inconsistencies in the Climate Litigation Campaign

The Manufacturers’ Accountability Project has released the newest and final chapter of Beyond the Courtroom: A Closer Look at Climate Litigation in the United States. Chapter Six, “The Inconsistencies Behind Climate Litigation,” explores major contradictions upon which the climate litigation campaign is built, underscoring the fundamental weaknesses in its legal claims.

Here are the top four contradictions explaining the fallacies of the climate litigation campaign, showcased via key excerpts from the chapter:

This Litigation is Part of the Fight to Stop Climate Change. Oh Wait, Never Mind!

  • “In hyping climate litigation to the public, advocates of the litigation campaign often say the purpose of these lawsuits is to achieve new climate regulations. … In the courtroom, though, the lawyers and plaintiffs run from this characterization. In a tightly scripted way, they say the lawsuits are solely about making energy manufacturers pay for local climate change damages.”
  • “The main goal of the litigation is to get internal documents that, even if taken out of context, could sway public opinion against the industry. … In correspondence with Tom Steyer seeking funding for the litigation, [Matt] Pawa emphasized his goal was ‘simply proceeding to the discovery phase’ to pressure the companies.”

Damages? What Damages?

  • “…a key element of [the] litigation rests on their ability to point to damages the cities are facing due to climate change. Accordingly, their pleadings detail with specificity how they believe climate change will affect their communities. Outside of the courtroom, though, the litigation advocates and localities acknowledge the entire speculative nature of their claims—or even flatly deny any damages exist or will exist.”
  • “Oakland’s lawsuit was filed in 2017 and lists its predictions of climate-related damages: ‘By 2100, Oakland will have up to “66 inches of seal level rise,” which, along with flooding, will imminently threaten Oakland’s sewer system and threaten property with a “total replacement cost of between $22 and $38 billion.”’ Yet, in its 2017 bond offering, Oakland stated it was ‘unable to predict’ climate change’s impact on the city…”

This Is Just a Traditional Tort Case… That Requires Changing Tort Law

  • “A key message for the litigants is that the lawsuits are just traditional state tort claims—there is nothing novel about them at all. But, outside the courtroom, they often admit the truth: these lawsuits require substantial changes to the way tort law, particularly public nuisance theory, has been applied.”
  • “Trying to get courts and the public to believe climate litigation is nothing more than a traditional state tort claim is clearly a key message point for the litigation, regardless of the truth.”

Climate Litigants: This Litigation Is Over the Illegal Promotion and Sales of Fossil Fuels… But Disclaims Any Attempt to Curb or Stop Any Such Promotion or Sales

  • “The climate litigation campaign is also of multiple minds when it comes to what, if anything, the energy manufacturers did to warrant liability for the entirety of global climate change. In La Jolla, participants urged the litigation to point to some notion of wrongdoing, calling it ‘hugely important’ to generate public ‘outrage.’ … The decision to vilify energy manufacturers, even though there is no indication there is any substance behind activists’ allegations, is a clear indication that this litigation is really a political and public relations ploy.”
  • “…[T]he plaintiffs’ central argument is that the energy manufacturers should be liable for causing climate change because they were aware of the risks of fossil fuels and sold them anyway. However, their own pleadings undermine this argument as they detail broader societal knowledge dating back to the Johnson administration in the 1960s about climate change, its causes and its impacts.”

Chapter Six concludes, “These contradictions are the most pronounced inconsistencies in the climate litigation campaign, underscoring the weaknesses of the legal cases. As the La Jolla report shows, this litigation was never about winning in court, but leveraging the media surrounding litigation to achieve political reform. They want to ‘delegitimize,’ ‘weaken,’ and ‘bring down,’ energy manufacturers.” Chapters One through Five are available here.