- - Tuesday, November 5, 2019

The House Oversight Subcommittee on Civil Rights and Civil Liberties spent time last week hearing allegations that the oil industry has worked to “suppress the truth about climate change” at a lopsided hearing that featured five witnesses for the majority and one lone voice for the minority. 

Two of those majority witnesses support a “tobacco litigation strategy” to attack the fossil fuel industry. The tobacco litigation has been deemed a success — particularly by the law firms that cashed in on the class action settlements — and proposed as a model for suing energy companies.  

But, climate change lawsuits have become little more than a harassment tool in service of an ideological agenda. It is important to note these lawsuits will not accomplish anything for the environment. The United States already leads the world in reductions in carbon emissions. While the United States reduced carbon emissions by 758 million metric tons since 2005, China has increased its carbon emissions by three billion tons. Convincing a jury to award damages based on what fossil fuel companies may or may not have said about climate change in the 1970s will do nothing to get other countries to start making the progress that the United States has shown in reducing carbon pollution.

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Yet, that doesn’t give pause to Harvard academic Naomi Oreskes and attorney Sharon Eubanks, witnesses at the subcommittee hearing, who both continue to support a tobacco litigation approach for attacking the fossil fuel industry. Ms. Oreskes, who has no academic training in climate science, put the cart before the horse when in 2015, she tweeted her “conclusion” that ExxonMobil misled the public on climate change before her research was even finished.

When the paper was complete, it was thoroughly taken to task by Cleveland State University Professor Kimberly Neuendorf, who highlighted the “fundamental errors” in its analysis and its failure to meet “basic standards of scientific inquiry.” Ms. Neuendorf — an expert in content analysis whose own work was the basis for Ms. Oreskes’s research — also explained that Ms. Oreskes drew distinctions between the private research of Exxon and that of Mobil, despite the fact those two companies were completely separate entities at the time. 

At the hearing, Rep. Carol Miller, West Virginia, zeroed in on the report’s dubious reliance on advertorials to make its case, asking Ms. Oreskes “Do you acknowledge that there is a flaw in your study where two-thirds of the advertorials cited are from two different companies?”

The other voice from whom committee members heard from Wednesday, Sharon Eubanks, is also an advocate of a tobacco-style legal assault on the energy industry. Ms. Eubanks has argued that energy companies should be held liable for violations of the RICO Act and that the U.S. Department of Justice should prosecute the energy industry over climate change.

The truth is that the theory of climate liability pushed by both Ms. Oreskes and Ms. Eubanks has been discredited on more than one occasion. In June 2018, for example, Judge William Alsup of the U.S. District Court for the Northern District of California dismissed a climate lawsuit brought by San Francisco and Oakland using the flawed theory that oil companies constitute a “public nuisance.” The following month, U.S. District for the Southern District of New York Judge John Keenan made a similar finding in a case filed by New York City, explaining that the legislative and executive branches, not the courts, are the right venues for addressing climate change policy.

So, what would a litigation victory against fossil fuel companies, similar to that against the tobacco companies accomplish? You might want to ask the millions of Californians who were plunged into darkness earlier this month when utilities shut down the grid in an attempt to avoid liability for sparking wild fires during high winds. Adopting a zero-risk strategy — something Ms. Eubanks and Ms. Oreskes seem to be advocating for the fossil fuel industry in terms of climate change — Pacific Gas & Electric cut power to millions, costing the state’s economy as much as $2.6 billion. More blackouts are predicted in coming months. 

Climate change is an issue that rightly belongs with our policymakers, and serious hearings should be held to debate and discuss the best approach to solving this problem. Unfortunately, last week’s dog-and-pony show was a missed opportunity to do just that.

• Anthony T. Caso is the director of the Claremont Institute’s Constitutional Jurisprudence Clinic at Chapman University, Fowler School of Law.

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