The Meeting That Struck Fear into the Heart of ExxonMobil
As most Catalyst readers likely know, ExxonMobil and other oil and gas companies are currently being sued by New York City and seven California counties and cities, including Oakland and San Francisco, for damages arising from climate change–driven sea level rise. These lawsuits allege that ExxonMobil and other fossil fuel companies actively misled the public about climate science for decades, despite knowing full well that emissions from their products pose a grave threat to the planet.
Now, in a move that carries more than a whiff of desperation, ExxonMobil has adopted the unusual and aggressive legal tactic of countersuing the lawyers who are trying to hold the company accountable for the damage its products have caused. Although the Union of Concerned Scientists has been spared, at least for the moment, ExxonMobil has already targeted at least 30 people and organizations, including the attorneys general of Massachusetts and New York, hitting them with lawsuits, threats of lawsuits, or demands for sworn depositions.
A central part of ExxonMobil’s claim is that a 2012 meeting UCS co-convened in La Jolla, California, launched a conspiracy that deprived the company of its free-speech rights. In legal complaints that try to portray the company as a victim, ExxonMobil (a company with $19.7 billion in 2017 revenue—more than scores of small to midsize countries) even refers to a vaguely sinister-sounding, if nonexistent, “La Jolla playbook” it claims the roughly two dozen scientists, historians, lawyers, and policy experts attending the meeting have continued to draw upon in a supposedly coordinated campaign.
Of course, the charge that any of these lawsuits is about free speech is not supported by the facts. None of the various cases cited have sought in any way to silence ExxonMobil but instead have focused on the unassailable fact that ExxonMobil has actively worked to confuse the public about the reality of climate change decades after its own internal scientists warned the company about the risks.
As for the La Jolla meeting, as an attendee I can say unequivocally that ExxonMobil’s laughable claim lacks even the tiniest shred of validity. Rather, UCS—along with its partner in convening the meeting, the Climate Accountability Institute—was doing what we always do: looking ahead and bringing together a diverse collection of talented individuals to discuss pressing problems and work toward solutions.
Specifically, we discussed what lessons could be learned from the case of the decades-long public health battle against the tobacco companies. And, as we often do with gatherings such as this, we published the proceedings publicly on our website.
Lessons from Tobacco Control
Climate scientists have been warning us since the 1980s about the dangers posed by our outsized reliance on fossil fuels, and yet the large oil and gas companies have continued to actively mislead the public and block climate action. In an eerily similar fashion, scientists in the 1960s concluded that smoking causes cancer but, for decades after the science was clear, the tobacco companies continued to successfully mislead the public about the link between smoking and disease. Eventually, however, Americans’ attitudes about smoking were transformed and the tobacco companies’ clout diminished substantially.
In planning the 2012 La Jolla meeting, we sought to explore a wide variety of perspectives about exactly how that transformation in the tobacco case was achieved, and what developments proved to be most significant in retrospect. Our hope was that lessons from the tobacco experience could be of some use in addressing the urgent problem of climate change—in helping to change public opinion and the behavior of the central corporate actors. To that end, UCS and the Climate Accountability Institute brought leading experts on tobacco control and climate change into a single room for two days.
A Rich, Diverse Exchange of Information
Respected climate scientists such as Myles Allen from Oxford University explained to the group how the emerging field of “attribution science” was advancing to such an extent that climate scientists could begin to confidently measure how climate change has increased the risk and severity of specific heat waves and other extreme weather. Richard Heede of the Climate Accountability Institute previewed a study showing how much of the carbon pollution added to the atmosphere each year could be attributed to the oil, gas, or coal produced and marketed by individual companies.
Health professionals such as Stanton Glantz, a professor of medicine at the University of California–San Francisco (UCSF) who helped the UCSF library organize the world’s largest collection of tobacco-related documents, spoke about the immense value of having such a centralized repository of documents for academics and activists to draw upon for research.
And Sharon Eubanks, a former US Department of Justice lawyer who led the successful racketeering case against cigarette makers during the Clinton administration, was one of several lawyers to explain how the public release of internal tobacco company memos proved crucial in prosecuting that case. Now a nationally recognized attorney at the West Virginia-based law firm Bordas & Bordas, Eubanks is one of the lawyers who has received a subpoena from ExxonMobil for documents about the La Jolla meeting—some six years after it was held.
“Subpoenaing people for attending a meeting—a conference, really—is actually just a scare tactic designed to re-frame the debate to suggest that Exxon is the victim here. It is not,” she says. “The First Amendment does not embrace any constitutional right to lie or to commit fraud. Fraud is not protected speech, and Exxon’s tactical response is an attempt to silence those who speak out as well as to warn those who might that they could become mired in costly legal proceedings.”
ExxonMobil’s Flimsy Legal Rationale
Notably, at the end of March, a federal judge dismissed a separate lawsuit ExxonMobil had brought against New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey in which the company had similarly tried to aggressively claim such a First Amendment right. In that case, ExxonMobil was trying to stop New York and Massachusetts from prosecuting a case that charges the company knew about climate science and the damage its products were doing to the planet but nonetheless misled shareholders and the public on the issue. In the recent ruling, the judge called ExxonMobil’s arguments “implausible” and ruled that the states’ case against the company can move forward.
ExxonMobil’s claims of conspiracy about the La Jolla meeting may meet a similar fate. As Howard Erichson, an expert in complex litigation and a professor at Fordham University School of Law in New York, told Bloomberg News, lawyers in big lawsuits, including those targeting tobacco, guns, and pharmaceuticals, meet routinely to share information and coordinate strategy. “I don’t think there’s anything wrong with plaintiffs’ lawyers and attorneys general strategizing together,” Erichson said, “just as I don’t think there’s anything wrong with lawyers for oil companies strategizing together.”
Peter Frumhoff, director of science and policy and chief climate scientist at UCS, says he’s proud of the exchange of information and expertise UCS helped to foster at the La Jolla meeting. “ExxonMobil can try to claim otherwise, but there was never any hidden agenda about this meeting, just a rich exchange of views about where the science stood and what we could learn from the history of tobacco control,” he says. “We’re gratified at what a timely and impactful meeting it turned out to be and the extent to which people are now recognizing the need for major oil and gas companies to be held accountable for the severe climate harms their products are causing.”