Red herring. According to Wikipedia, that phrase means, “Something that misleads or distracts from a relevant or important question. It may be either a logical fallacy or a literary device that leads readers or audiences toward a false conclusion.” The city of Baltimore has brought suit against several major oil companies, claiming their actions violate Maryland consumer protection laws by running disinformation campaigns to hide what they knew about the dangers of burning fossil fuels. The city is asking for money damages — money that could be used to protect the community from the consequences of a warming planet.
The city filed its suit in state court, but the defendants are trying to get it moved to federal court. The city thinks local jurors will be more inclined to look favorably on its claims. Where else would a case based on Maryland law be tried? The oil industry, on the other hand, thinks it will have better luck with a federal judge and federal law. Somewhere in the back of its collective mind, the industry is banking on the likelihood that the US Supreme Court, which is currently dominated by reactionaries, will protect it.
This week, Kannon Shanmugam, a lawyer representing BP, Exxon, Shell, and other energy firms, told a federal appeals court that lawsuits alleging fossil fuel companies lied about the climate crisis could put the kibosh on offshore oil drilling, which would result in America producing less oil, which would force the US to rely on foreign countries for oil, which would pose a security risk to the nation. “The relief that Baltimore seeks would deter, if not render entirely impractical, any further production on the outer continental shelf,” the so-called attorney intoned earnestly.
Whew! That is one big, smelly fish to drag in front of a panel of judges. The logical conclusion to such an argument is that oil companies should be free to lie, cheat, and steal to their heart’s content because it keeps America safe. So what if the seas rise, the heavens pour down biblical amounts of rain, or people have to move because their neighborhoods get flooded? Those are petty concerns compared to keeping America safe. Interestingly enough, many of these defendants are not even US corporations. Could there be a more delicious irony than foreign corporations pretending to be concerned about US security?
Shanmugam told the court that the case should fall under federal jurisdiction because pollution is regulated by national laws and the climate crisis is a national and international issue. He also accused Baltimore and other municipalities of using the courts to try to change climate policy. “Global climate change is obviously the subject of international agreements as well as pervasive regulation by the federal government,” he said. “Too bad about your flooding neighborhoods. We’ve got bigger fish to fry,” he seemed to suggest.
Vic Sher, an attorney representing the city of Baltimore, told The Guardian that the city’s case was not about the regulation of pollution, but about the lies told by the fossil fuel industry. “The goal of the complaint, sadly, cannot address global climate change. It’s focused very narrowly on a past pattern of conduct based on deception and failure to warn, and it seeks compensatory damages for injuries that flow from that past conduct,” he said.
Big Oil & The Big Lie
Karen Sokol, a law professor at Loyola University who specializes in climate litigation, tells The Guardian the claim is one of a number of “scare tactics” deployed by the oil industry as it fights to move the Baltimore case and other similar cases out of state courts where consumer protection and other laws favor the plaintiffs. “It’s a scare tactic, which is telling the courts to back off, we’re a very powerful industry and we’re essential right now to energy security. If you step into this, you’re going to screw everything up.”
She said the judges for the federal appeals court appeared “very skeptical” about the oil industry’s claim that the Baltimore case belongs in federal court. She added that the industry’s legal argument did not address the substance of the city’s claim that big oil ran a disinformation campaign and lied about the harm caused by its part in creating the climate crisis, and instead tried to put the focus on who regulates pollution.
If the appeals court decision went against the oil industry, Sokol expects the oil companies to go back to the US Supreme Court as part of their strategy to delay the Baltimore case and others like it for as long as possible. “It will continue to fight this thing out in the procedural stage till hell freezes over before it allows it to get to discovery, much less a trial, because it knows the civil discovery system of state courts is so powerful that it would be forced to disgorge documents that would shed light on the extent of this disinformation campaign even beyond what we already know.”
That, CleanTechnica friends, is really what this fight is all about. The industry is petrified of what Baltimore and other plaintiffs will find in its files if it is forced to disclose what it knew and when it knew it. That’s why Exxon is trying to drag plaintiffs in California into Texas courts, because it knows those Lone Star State judges will build an impenetrable wall around the company to protect it from revealing the truth.
The Guardian says the outcome of Tuesday’s hearing will influence similar cases within the same federal judicial district, including a suit by Charleston, South Carolina. It may also have a bearing on nearly a dozen other lawsuits by states and municipalities in other jurisdictions. A federal appeals court in Hawaii is scheduled to hear a similar case next month.
An experienced trial attorney will tell you that delay always benefits one of the litigants. It may be that delay will help Big Oil, but it is certain it will not benefit the citizens of Baltimore, Maryland, America, or the world. With every day that goes by, the climate crisis becomes more of a threat to humanity. The fossil fuel industry has long taken advantage of a distorted economic system that allows it to avoid paying for the harm its waste products cause.
If the price of gasoline included all the social costs of the damage done when it is burned, it would cost over $10.00 a gallon. Think of what that would mean to the EV revolution!
The oil companies have avoided paying the full cost for the harm its products cause because governments decided long ago that the benefits of building economies that relied on fossil fuels outweighed the harm. That thinking might have been acceptable in the 40s and 50s before anyone really understood the damage done by extracting, transporting, and burning fossil fuels, but scientists started telling these companies about those damages 60 years ago. Had the companies begun addressing the issue then, most of the global heating that afflicts the world today could have been avoided.
By lying about what they knew and covering it up, these greedy companies created a situation that could lead to the extinction of our species, and they are perfectly fine with that so long as it puts money in their pockets. In what world should such a coldly calculated infliction of harm be exempt from consequences? That’s the question the courts will — and should — be asked to answer.
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