Oil company blamed for warming won’t question science

Source: Anne C. Mulkern, E&E News reporter • Posted: Thursday, March 22, 2018

Oil companies accused of raising ocean levels might not question the existence of climate change in federal court.

Chevron Corp. is expected to take a lead role in a climate science “tutorial” at the U.S. District Court for the Northern District of California. The unusual hearing was required by Judge William Alsup, who is overseeing lawsuits filed by the cities of San Francisco and Oakland claiming that five oil giants are contributing to damages related to climate change.

In the hours before the tutorial, which Alsup is using to gather historical observations about climatic conditions that can go back thousands of years, Chevron said it wouldn’t question the facts around rising temperatures.

“Chevron is not going to be engaging in a debate on climate change science,” said Avi Garbow, co-chairman of the Environmental Litigation and Mass Tort Practice Group at Gibson, Dunn & Crutcher LLP and a Chevron lawyer. He’s also a former official in the Obama administration who defended the Clean Power Plan as general counsel to then-U.S. EPA chief Gina McCarthy.

The company will “anchor its presentation” on the Fifth Assessment Report from the U.N. Intergovernmental Panel on Climate Change (IPCC), issued in 2014, he said on a call with reporters Monday.

“Chevron’s neither going to overstate nor understate degrees of confidence. Chevron’s simply going to present the conclusions of the IPCC because Chevron thinks that’s the best and the most accurate way of responding to the court’s tutorial request,” Garbow said.

San Francisco and Oakland, along with several counties in California, are suing Chevron, BP PLC, ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC for allegedly downplaying the threat of climate change. The local governments claim that the oil majors knew years ago that the emissions related to their products could cause sea-level rise and contribute to other damages.

Earlier this month, Alsup asked the cities and oil companies to answer nine questions, including “What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?” and “What are the main sources of heat that account for the incremental rise in temperature on Earth?”

He also asked the cities to produce documents referred to in their suits that deal with the extent to which the oil companies knew about the risks of climate change. Those documents have been submitted to the court.

Despite its open approach to the science hearing, Chevron yesterday filed a motion to dismiss the suits. So did ConocoPhillips, which claimed that the cases lack jurisdiction because it’s a Delaware company headquartered in Houston.

Chevron said claims that are similar to those filed by San Francisco and Oakland have been dismissed by other courts. Its key argument is that U.S. EPA has oversight over greenhouse gas emissions.

“This is not the first (or even the second or third) time a plaintiff has tried to plead global warming-related tort claims,” Chevron’s motion said. “Similar claims have been considered, and dismissed, by the Supreme Court, the Ninth Circuit, and district courts around the country.”

Oil companies beyond Chevron declined to say if they would make presentations at today’s hearing or defer to Chevron. A spokesman for Exxon Mobil criticized the lawsuits.

“Reducing greenhouse gas emissions is a global issue and requires global participation and actions,” Scott Silvestri said in an email. “Lawsuits of this kind — filed by trial attorneys against an industry that provides products we all rely upon to power the economy and enable our domestic life — simply do not do that.”

The cities’ attorneys declined to reveal their strategies for the hearing. San Francisco City Attorney Dennis Herrera said he “looks forward to providing the objective history of climate change science and the consensus science on future impacts. It’s time for climate science to have its day in court.”

“These companies knew their products were causing sea-level rise, and they deceived people about it,” Herrera added. “Now, that bill has come due.”

On the record

The oil companies have no real choice but to acknowledge climate science, legal experts said.

“They realize that the science behind climate change is so well understood and accepted that it isn’t in their interest to be seen as deniers,” Ann Carlson, co-director of the Emmett Institute on Climate Change and the Environment, said in an email. “Moreover, their own internal documents and research accept the validity of climate change and for several of them they’ve made public statements acknowledging the human contribution to climate change.”

She added, “They’re really hedging their bets, instead, on the large number of contributors to climate change, the causation questions, the global nature of the problem, and the hope that they can get courts to find that federal common law (at least) displaces nuisance claims.”

On the call with reporters, Chevron attorneys said it’s not possible to pin the cause of warming on a handful of oil companies. The cities in their suits say that the consumption of fossil fuels has created harms, said Joshua Lipshutz, a partner at Gibson, Dunn & Crutcher and a Chevron lawyer.

“If that’s the allegation, then really anyone in the world could be brought in in the case, including the plaintiffs themselves,” he said. “San Francisco and Oakland are large consumers of fossil fuels and large emitters of greenhouse gas emissions.”

The Chevron lawyers discounted research attempting to pinpoint sources of greenhouse gas emissions. Garbow said it’s not emphasized in the IPCC report, which is considered scientific consensus.

“It is, as far as I’m aware, a line of, if you will, scientific study or inquiry that is not very developed, and certainly not at this juncture widely accepted by any stretch,” Garbow said.

Daniel Farber, a law professor at the University of California, Berkeley, said in an email that the oil companies may try to show that there was “more uncertainty until recently” in terms of climate science.

Garbow, the Chevron lawyer, noted “that it is extremely likely that human influence has been the dominant cause of observed warming since the mid-20th century.”

Farber said showing that uncertainty existed years ago might help the companies fight accusations that they knew the risks and “were simply lying in their public statements or were completely irresponsible to oppose regulation at earlier points in time — whether it helps them enough isn’t clear to me.”

Farber said it’s noteworthy that the oil companies plan to acknowledge that climate science is accurate.

“Most or all of the major oil corporations have now acknowledged the reality of climate change and the need for government action (though who knows how serious they are about that),” he said. “So it would be hard for them to take a contrary view in this litigation. Getting them to say the same thing in court will be kind of a victory for the plaintiffs even if nothing else goes their way.”