ExxonMobil just beat the state of New York in a closely-watched climate fraud case. But other state and local governments suing the oil and natural gas company say they remain confident they can still prevail in their own legal fights.
The nation's largest energy company successfully fended off claims Tuesday by New York that it misled investors for years in how it calculated the financial risks of climate change. The high-profile trial marked the culmination of a four-year-old probe under three top prosecutors in New York.
But Exxon is not yet in the clear. Congress too gridlocked to pass major climate legislation, other left-leaning cities and states have also turned to the courts to hold oil companies accountable for their role in climate change — and are making their cases on arguments different than those brought in New York.
"The New York suit was based on one specific alleged violation of a statute that is peculiar to New York," said Michael Gerrard, a professor of environmental law at Columbia Law School. "That theory didn't fly. But it has little bearing on the wide variety of other legal theories that are being deployed in climate change cases."
New York Supreme Court Judge Barry Ostrager ruled that the state failed to show that the oil giant broke state securities laws when describing to shareholders how it analyzed the effect of future greenhouse gas regulations on the company’s bottom line, Steven Mufson and I reported.
During a 12-day trial this fall, the state tried to wield a powerful anti-fraud state law, called the Martin Act, that does not require prosecutors to prove that a company intended to deceive investors. The office of New York Attorney General Letitia James (D) tried to show the company lied to investors by keeping two sets of books — one public, one private — for estimating the cost of complying with future climate regulations.
But even with that relatively low bar, Ostrager found New York’s allegations “to be without merit” and the use of the state’s securities law to be a stretch. Ostrager found that Exxon had been transparent about the two different ways it calculated those costs and that New York had failed to show that "any reasonable investor" would have been misled.
Taking heed of that ruling is Massachusetts Attorney General Maura Healey (D), who brought a similar suit against Exxon in October. Her office, like New York, says Exxon misled with its use of so-called “proxy costs” for carbon.
But that is not the only claim Massachusetts is making. The state is also suing Exxon for misrepresenting the environmental benefits of some of its gasoline and motor oil products and for failing to disclose the risks of climate change caused by burning fossil fuels.
Chloe Gotsis, a spokeswoman for Healey’s office, said Massachusetts is not daunted by the ruling from New York since its claims relate to advertising, and not just cost estimates for complying with regulation.
“We will continue our work to hold the company accountable for its misrepresentations,” she said.
Andrew Logan, director of the oil and gas program at Ceres, a non-profit group of environmentalists and investors, said the emphasis on consumers and misinforming the general public in the Massachusetts case would avoid the need to find harm to a “reasonable investor."
“These cases will get easier to prove unfortunately as climate change gets worse,” Logan said. “But if you wait long enough for damage to be obvious, you miss the opportunity to prevent it in the first place.”
Perhaps even more concerning to Exxon and other oil companies is the slew of other local governments seeking compensation from them for the damage rising temperatures have already wrought to drought-plagued farmers and beachfront businesses.
Prosecutors in Baltimore, Rhode Island, San Francisco and Oakland, as well as coalitions of communities in the mountains of Colorado and along the coast of California, have brought lawsuits in state court claiming various oil companies have created a “public nuisance” — a charge more typically brought against a noisy neighbor — for the heat-trapping pollution their products have put into the atmosphere.
Those cases are still winding their way through the court system, and there are still a number of hurdles litigants need to leap. Federal judges are still sorting out whether the claims should be heard at the state or federal level. Oil firms have sought to move the cases to the federal court system since the Supreme Court has ruled in favor of industry in a 2011 public nuisance suit.
But the ruling out of New York shouldn't be one of those barriers, said David Bookbinder, chief counsel at the Niskanen Center, a think tank in Washington, since the public nuisance cases rely on a different set of laws.
"It has zero relevance to those cases," said Bookbinder, who is representing the three local governments in Colorado in their suit against Exxon and Suncor Energy, a Canadian oil company.
Last year, Exxon gave $1 million to promote a plan to grant oil companies immunity from climate lawsuits in exchange for passing a tax on carbon emissions, though the group that came up with that plan, Americans for Carbon Dividends, recently backed away from the idea of shielding companies from court cases.
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— Greta named Time's "Person of the Year": The magazine said Swedish teenage climate activist Greta Thunberg, who has spoken forcefully against older generations for failing to do enough to stop runaway climate change, was the most consequential person of 2019.
From the magazine: "Thunberg is not a leader of any political party or advocacy group. She is neither the first to sound the alarm about the climate crisis nor the most qualified to fix it. She is not a scientist or a politician. She has no access to traditional levers of influence: she’s not a billionaire or a princess, a pop star or even an adult. She is an ordinary teenage girl who, in summoning the courage to speak truth to power, became the icon of a generation"
— "They’d be knocking out those birds left and right": Speaking to a crowd during a campaign rally in Hershey, Pa., Trump did a riff of some of his usual remarks mocking wind turbines.
- Here he blows again: He began by telling the crowd that there would be “windmills all over the place” if Hillary Clinton had won the 2016 election. “They’d be knocking out those birds left and right,” he said. “’Darling, I want to watch television tonight and there’s no damn wind. What do I do?,’ ” Trump said, suggesting wind energy would affect whether someone can power on their TV.
- He also mocked those concerned about climate change: “’Darling, there’s no wind — the damn wind just isn’t blowing like it used to because of global warming, I think. I think it’s global warming,’ ” he said to laughter and cheers. “No more wind. No more life. The ocean is going to rise an eighth of an inch within the next 250 years — we’re going to be wiped out.”
— Pete Buttigieg releases the names of his former McKinsey clients: The Democratic presidential candidate and South Bend, Ind., mayor released the names of private and government clients he had while working at McKinsey & Company, after facing weeks of pressure to be more transparent about his work at the consulting firm, as The Post’s Chelsea Janes and Amy B Wang write. “I never worked on a project inconsistent with my values, and if asked to do so, I would have left the firm rather than participate,” Buttigieg said in a Friday statement.
- The list: The clients included Best Buy, for which he “investigate[d] opportunities for selling more energy-efficient home products in their stores,” the Natural Resources Defense Council, Environmental Protection Agency, the Department of Energy, other nonprofit environmental groups and several utility companies for a project "to research opportunities to combat climate change through energy efficiency;” and environmental nonprofit group the Energy Foundation on “research opportunities in energy efficiency and renewable energy.”
— Interior Dept. IG finds top agency official violated ethics rules: The Interior Department’s internal watchdog said Douglas Domenech broke federal ethics rules when he met with a former employer to talk about the rollback of endangered species protections. The assistant secretary for insular and international affairs met with the conservative research organization the Texas Public Policy Foundation in April 2017, according to New York Times. After that meeting, Domenech sent an email to an attorney for the group that read: “Keep fighting.” The group was pursuing litigation against the Interior Department at the time, and the meeting was a clear violation, per the report.
- The rule in question: “Federal ethics laws prohibit government officials from meeting with their former employers for at least a year after they take public office to prevent those employers from improperly influencing the outcomes of public policy,” the Times writes.
Meanwhile, Bernhardt is cleared: Separately, another investigation by the watchdog that was newly made public found Interior Secretary David Bernhardt did not violate ethics rules when he intervened in the writing of a report on the impact of pesticides on endangered species. Bernhardt’s actions “likely delayed its publication and may have changed some of its content,” the Times writes, but the watchdog’s report found his efforts “did not constitute an ethics violation and that none of his former lobbying clients would have been affected by the outcome of the report.”
— Elizabeth Warren is out with a “Blue New Deal”: The Democratic presidential hopeful has released a plan to address waterfronts and bolster coastal economies by readying ports for sea-level rise and other climate impacts, and boosting the offshore wind industry as she also phases out offshore drilling. “The proposal stands out as one of the most comprehensive plans yet to emerge to specifically target working waterfronts,” HuffPost reports. “Coastal economies were considered a blind spot in the Green New Deal movement that emerged over the past year and calls for a federal climate policy that guarantees good-paying jobs and rapidly transitions the country off fossil fuels.”
- More details: The plan highlights “climate-smart” ports that look to reduce air pollution in nearby communities. It expands local seafood markets to help the public “know where their seafood comes from and that it was caught in an ethical and sustainable way.” It also creates a new program for research and policy development for ocean-based farming.
- What she says: “While the ocean is severely threatened, it can also be a major part of the climate solution — from providing new sources of clean energy to supporting a new future of ocean farming,” Warren wrote in a post on Medium.
— Meanwhile, the oceans have been a key focus at the climate summit in Madrid: There are more than 100 events and exhibits during the summit that feature discussions on oceans. “At the start of the summit, Chile launched a new international initiative to put the ocean, the largest carbon sink on the planet, to use in the fight against rapidly worsening climate change,” HuffPost reports. “The European Union and Spain each held an ‘Ocean Day’ at their conference pavilions. International leaders touted their own countries' efforts to better safeguard marine areas. And scientists and NGOs have rolled out several new ocean reports and initiatives.”
- To quote: “For the first time, we bring the oceans to the table,” Carolina Schmidt, president of COP25 said during a news conference. “Oceans cover two-thirds of our planet. The only way we will increase ambition is if we consider how we protect our oceans.”
— “I am here because no one from the White House is here”: Billionaire philanthropist and Democratic presidential candidate Mike Bloomberg unveiled a report at the U.N. climate conference on sectors of the U.S. economy that are on track to reduce greenhouse gas emissions without the help of the federal government. “The analysis found that ambitious action on the part of cities, states and private businesses alone could reduce greenhouse gas emissions in the United States by as much as 37 percent below 2005 levels by 2030,” The Post’s Brady Dennis reports. “ … Bloomberg’s appearance at the United Nation’s annual climate negotiations kicked off his push this week to highlight climate change as a central issue in his campaign.”
— Greenland’s ice losses have septupled: The annual loss of ice on Greenland has nearly doubled each decade, from 33 billion tons of ice losses in the 1990s to an average of 254 billion tons a year. That’s according to 26 separate satellite measurements and 89 scientists who produced those measurements. “Since 1992, nearly 4 trillion tons of Greenland ice have entered the ocean, the new analysis found, equivalent to roughly a centimeter of global sea-level rise,” The Post’s Chris Mooney reports.
- The dire implications to what is happening in Greenland: “The recent Greenland losses, the experts suggest, match a more dire sea-level projection outlined by the United Nations’ chief climate science body, the Intergovernmental Panel on Climate Change,” he adds. “Under that high-end scenario, Greenland could contribute about 16 centimeters, or around half a foot, to ocean levels by 2100.”
— Arctic report card: Speaking of what is happening up north, a major new federal assessment of the Arctic region reveals it may have already crossed a threshold to become a net emitter of greenhouse gas emissions because of the melting permafrost. The carbon-rich frozen soil covers nearly a quarter of Northern Hemisphere land area, including stretches across Alaska, Canada, Siberia and Greenland, The Post’s Andrew Freedman reports.
- What experts have feared: “There has been concern throughout the scientific community that the approximately 1,460-1,600 billion metric tons of organic carbon stored in frozen Arctic soils, which amounts to nearly twice as much greenhouse gases than what is currently contained in the atmosphere, could be released as the permafrost melts.”
- But: “The report notes there is still considerable uncertainty about carbon emissions estimates given the relatively limited observational measurements to date, but lays down a marker as a warning that the Arctic region — which is warming at more than twice the rate of the rest of the world, may have already turned into the global warming accelerator that has long been feared.”
— Brazil president calls Thunberg a “brat”: Brazil’s President Jair Bolsonaro called the teenage climate activist a “brat” after she called out violence against indigenous people in the country, Reuters reports. “Greta said the Indians died because they were defending the Amazon (forest). How can the media give space to a brat like that?” Bolsonaro told reporters. He used the Portuguese word “pirralha.”
- What Greta said: The Swedish climate activist tweeted that indigenous people are “being murdered for trying to protect the forest from illegal deforestation.”
- The context: “Indigenous communities in Brazil are facing escalating violence since Bolsonaro took office in January, vowing to reduce tribal rights to land and allow commercial exploitation of their protected reservations.Tribes have faced violence especially from illegal loggers and miners,” per Reuters.
— Oil giant cuts its value amid fossil fuel oversupply: Chevron is slashing the value of its assets by more than $10 billion, including its shale holdings in Appalachia, the Wall Street Journal reports. It’s one of the largest valuation reductions in years by an energy producer. “Chevron is also restructuring its operations to focus on fewer prospects in the face of persistently low natural gas prices, and will explore sales of some assets,” per the report. “ … The sobering reappraisal by one of the world’s largest and best-performing oil companies is likely to ripple through the oil-and-gas industry, forcing others to publicly reassess the value of their holdings in the face of a global supply glut and growing investor concerns about the long-term future of fossil fuels.”
- The Senate Energy and Natural Resources Committee holds a business meeting on pending legislation on Thursday.
- The Senate Commerce, Science and Transportation Committee holds a hearing on the U.S. Coast Guard Arctic strategic outlook on Thursday.
— Someone is putting tiny cowboy hats on pigeons: No one knows who’s behind it, but residents have recently spotted numerous pigeons wearing colorful cowboy hats on the streets in Las Vegas, The Post’s Deanna Paul writes. The founder of local pigeon rescue Lofty Hopes has been scouring the area, handing out business cards and telling people: “If you see them, feed them. We’re only three miles away, and we can get there pretty quick.”