Mountain States

Central Figure Behind National Climate Litigation Campaign Comes to Boulder This Week as City Readies Suit

A controversial activist at the center of a national campaign bringing climate change lawsuits against oil and gas companies – including in Boulder, Colorado – will be a prominent speaker at this week’s University of Colorado, Boulder Conference of World Affairs. It won’t be the first time Harvard Professor Naomi Oreskes has participated in the conference, but this time she will be a part of no less than five panels spanning three days, one of which is a screening of her documentary, Merchants of Doubt.

While Oreskes presents herself in these scenarios as a climate expert and historian, she usually omits the fact that she is one of the central figures behind the national climate liability campaign that aims to use the court system to investigate energy companies and assign blame for climate change. Yet she has been featured for her controversial campaign in the New York Times.

Oreskes has been known to publish research with questionable findings that help push forward her preferred narrative of ongoing wrongdoing by energy companies. For instance, her latest study—which purported to show statements made by ExxonMobil proved that the company knew about climate change but covered up its findings—drew a sharp rebuke from the very academic who designed the data analysis method Oreskes used to back up her claims. According to Kimberly A. Neuendorf, Ph.D., a Cleveland State University professor who literally wrote the book on content analysis, Oreskes’ findings were “unreliable, invalid, biased, not generalizable, and not replicable.”

With Boulder on the verge of announcing its lawsuit, and given Oreskes’ role in the national campaign, could her visit to Boulder extend beyond her on-campus presentations?

Climate Litigation Campaign

The climate litigation campaign started at a 2012 conference in La Jolla, Calif. where Oreskes helped organize climate activists to devise a plan to bring lawsuits against energy companies. The goal was to extract hundreds of billions of dollars in punitive damages and turn public opinion against the industry. The conference was co-sponsored by the Snowmass, Colo.-based Climate Accountability Institute (CAI), a group Oreskes co-founded and served as a longtime member on its Board of Advisors.

CAI has been front and center in the push to saddle energy companies with legal liability and bad press. Their members have also been integral in convincing politicians and attorneys general to disavow these companies in public and use their legal authority to investigate them. Oreskes admitted to briefing several attorneys general behind closed doors alongside fellow CAI alum Peter Frumhoff (whose day job is with the Massachusetts-based Union of Concerned Scientists) as far back as 2015 with the hopes of convincing these states to pursue litigation against energy companies. Since then, New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey have moved forward with investigations against ExxonMobil (though so far, they have been fruitless).

Coastal cities have joined in on the climate litigation pile-on. Several municipalities in California, along with New York City, have announced they are suing energy companies for “public nuisance,” claiming they are responsible for climate change and should pay for damages incurred by storms. Most of these suits are being filed by the same plaintiffs’ attorneys who are putting forward identical, flawed legal arguments. Matt Pawa, who was also a major player at the La Jolla Conference, has been spearheading the legal arm of the climate liability campaign. Pawa’s involvement is no surprise given he has a history of bringing forward frivolous lawsuits that depend on the “public nuisance” argument these municipalities are using. That same reasoning made it all the way to the Supreme Court where it was unanimously defeated in an 8-0 decision.

When Will Boulder Announce its Climate Lawsuit?

It’s no secret that Boulder has been planning its own climate lawsuit, in the same style as those brought forward by California municipalities and New York City. Oreskes has not yet disclosed whether she will also be briefing Boulder city officials while she is in town.

The Boulder City Council first talked publicly about their desire to join in on the climate suits at a meeting in November 2017. The Boulder City Attorney made clear that Boulder is the next target for these cookie-cutter lawsuits because of its geographical diversity when he said:

“Obviously California is a coastal community; we are not. And so the people who have approached us are interested in branching out to other communities in the country who have different kinds of climate effects than those that are affecting the coastal communities.”

While these suits claim to have merit based on environmental damages, New York City Mayor Bill de Blasio offered up clarification on their intent when he told U.S. Sen. Bernie Sanders (I-VT), “Let’s help bring the death knell to this industry.”

While these cities are filing lawsuits based on the effects of climate change, the same municipalities are downplaying those risks in their bond offerings. In other words, the cities are telling courts that they face imminent destruction from climate change while simultaneously telling their investors that it is unlikely they will be materially impacted by climate change. In a letter asking the U.S. Securities and Exchange Commission to investigate the discrepancy, the Competitive Enterprise Institute went as far as to say, “In our view, this inconsistency raises serious questions of municipal bond fraud.”

Josh Rosner at Seeking Alpha wrote earlier this year, “There is little doubt that these suits have been the result of the dissatisfaction some states feel towards federal environmental and energy policies.” Frustrated by federal inaction on climate change, activists are instead trying to force their preferred policies through the courts, cutting the representative parts of our democracy out of the conversation.

Perhaps the emerging backlash against these meritless legal maneuverings is giving Boulder pause to move forward with their own case. Back in November, it was full steam ahead, as Councilmembers expressed their support and enthusiasm for the litigation. But since then, it has barely been discussed during subsequent meetings.

Reports surfaced that Boulder is considering “potential costs and risk” associated with pursuing the litigation. While the as-of-yet unnamed law firm shopping the lawsuit has agreed to represent the town pro-bono, there are still potential costs associated with the case. If a judge were to deem the suit frivolous, Boulder could be on the hook for fines or be forced to pay the attorney fees for the other side. In addition, the litigation will take up substantial city resources and divert their attention from other matters necessary for keeping the town running. And just last month, one of Colorado’s top environmental regulators cautioned against taking up these climate lawsuits.

It will be interesting to see if Oreskes’ visit to town has any impact on whether Boulder decides to move forward with the misguided litigation.  Let’s hope for Boulder taxpayers that it’s not the case.

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