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Debate opens in landmark Calif. climate case


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Essential Energy Insights - October 2021

Debate opens in landmark Calif. climate case

SNL Image

Acting San Francisco Mayor Mark Farrell, at the podium, speaks at a clean energy rally Feb. 28. San Francisco and Oakland
are suing oil majors over climate change.

Source: Associated Press

One day after five of the world's largest oil producers asked a federal judge to toss out San Francisco and Oakland's marquee litigation seeking billions of dollars from the oil majors to buffer Californians from "the dangers of fossil-fuel driven climate change," one of the defendants — Chevron Corp. emphatically aligned itself with the same mainstream scientific consensus that underpins the plaintiffs' arguments.

"From Chevron's perspective, there's no debate about climate science," Theodore Boutrous, an attorney representing the Bay Area-based oil company, said at an unusual five-hour March 21 "tutorial" on atmospheric science ordered by U.S. District Court Judge William Alsup at the Northern District of California in San Francisco.

Held in a packed courtroom, the session was organized "so the poor judge can learn some science," Alsup said. No one was under oath or subject to cross-examination, but the technical discussion foreshadowed the bigger battle over climate science that may still lie ahead in The People of the State of California v. BP Plc, et al. Should the case proceed to trial no date has been set it could set the stage for a landmark ruling on oil majors' actions, or inaction, around the effects of burning fossil fuels on the climate.

The 'free choice' defense

If the legal experts, environmentalists and others who filled the benches were expecting the climate science equivalent of the legendary 1925 Scopes trial on evolution, they walked away disappointed. While Chevron conceded on climate change, lawyers for BP PLC, ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC declined to speak. Chevron accepts the findings of the United Nations' Intergovernmental Panel on Climate Change, or IPCC, including its 2013 conclusion that human influence is "extremely likely" to be "the dominant cause of the observed warming since the mid-20th century," Boutrous said.

The presentation provided a glimpse of the outlines of the oil companies' defense. Although Chevron agrees with the IPCC's assessment that climate change is a worldwide scourge requiring "global engagement and global action," it does not believe that fossil fuel producers are liable for its fallout or should pay for new seawalls and other expensive infrastructure in San Francisco, Oakland or anywhere else. The IPCC itself makes no such connection, Boutrous said. "They don't say it's the production and extraction that is driving the increases [in concentrations of carbon-dioxide]; they say it's the way people are living their lives, the way society is developing."

That is akin to the "free choice" defense mounted by tobacco companies in the landmark lawsuits brought against them in the 1980s. Forced to concede that smoking could cause cancer, companies such as Philip Morris and R.J. Reynolds said they only produced and marketed cigarettes and claimed they were not responsible for the health outcomes of smokers who chose to smoke them.

That defense did not succeed for the tobacco companies and it may not for the oil majors. The San Francisco and Oakland lawsuits, originally filed in state court in September 2017, say the oil majors knew they were responsible for climate change, misled the public and "profited handsomely for decades," San Francisco City Attorney Dennis Herrera said when the lawsuit was filed. "Instead of owning up to it, they copied a page from the Big Tobacco playbook."

'You can't get away with sitting there in silence'

Speaking at the tutorial, plaintiffs' witness Donald Wuebbles, a professor at the University of Illinois who co-authored the latest IPCC report and is working on the U.S. government's Fourth National Climate Assessment, critiqued alternative global warming theories spread via the media and detailed an alarming rise in temperatures along with an upsurge in extreme climate and weather events that have cost the U.S. $1.5 trillion so far and could intensify as global temperatures climb.

Alsup, who cautioned against "monkey trial" comparisons, was miffed that four out of the five defendants said nothing. "You can't get away with sitting there in silence and then later say [Chevron] wasn't speaking for us," the judge said. Alsup gave BP, ConocoPhillips, Exxon Mobil and Shell two weeks to clarify any disagreements with Chevron's position on climate change.

Conservative think tank The Heartland Institute, on the other hand, was happy to share its views. In a March 16 friend-of-the-court filing, it presented contrarian analysis by scientists calling the consensus view — that human-caused warming is likely to wreak havoc on society flawed. The effects of global warming "will be too small and slow to be harmful and will prove beneficial," they said.

Alsup ordered the authors of the Heartland study to disclose their funding sources. One, astrophysicist Willie Wei-Hock Soon, revealed research grants from the Exxon Mobil Foundation and from Southern Co., one of the largest U.S. power companies, along with conservative donor Charles Koch.

Another brief, filed March 19 by three members of the National Academy of Sciences, argued that the climate changes of the past half century "are common in the geologic record," while human impacts are small and challenging to link to "the modest recent warming." They claimed that "there have been no detrimental changes observed in most salient climate variables and projections of future changes are highly uncertain."

Two of those scientists have received funds from Peabody Energy Corp., the largest U.S.-based coal company, while the other is a former employee of BP, they disclosed. (Case No. C 17-06011 WHA)