by Mike O’Brien
At the dawn of this new year, I might have chosen to wax hopeful about promising social and technological developments boding well for the future. Or I might have taken a light-hearted detour from my usual concerns, and written about something artistic, literary or otherwise creatively engaging. But no, there will be none of that here. Because this leopard has accepted his spots, and so instead I will be sharing some sobering and morally outrageous tidbits from a 250-page court filing. I really do think grad school broke my brain. Normal people don’t read court filings. Not even all lawyers do (avoid those ones).
The filing in question was submitted to the federal district court in Puerto Rico near the end of November 2022. Entitled “Municipalities of Puerto Rico vs Exxon Mobil et al.”, it is a class action complaint filed by 16 Puerto Rican municipalities on behalf of all municipalities on the island (these being the “class” represented), against the largest investor-owned energy companies (and their collaborators) conducting business in the territory. These defendants include Exxon Mobil, Shell, Chevron, BP, Peabody Energy, and many others besides, along with the network of media, public relations and think-tank enterprises which these energy companies employed for their anthropogenic global warming (AGW) denial campaigns. Puerto Rico is particularly vulnerable to climate change, as a small island territory in the path of “Hurricane Alley”, and surrounded by waters that are experiencing faster-than-average warming. This vulnerability is cited throughout the complaint, characterizing the territory as an “eggshell plaintiff”, analogous to someone with an eggshell-thin skull who suffers great harm from a blow to the head. The defendant may not have known that the victim had such a thin skull, but they ought to have known that hitting people on the head was likely to cause harm, and must suffer the bad luck of being fully liable for the extraordinarily bad consequences. Of course, in the case of the fossil fuel industry and Puerto Rico, the industry’s own data told them that Puerto Rico had the climate-vulnerability equivalent of an eggshell skull. But this is an industry that historically has had no qualms about bashing literal skulls to advance its interests, so figurative skull-bashing ought not to elicit surprise.
The document is a lot to take in, especially for someone who is not a lawyer (I am a philosopher, which is like a lawyer for arguments that do not directly concern anybody). A few news stories popped up immediately after the filing, with suitably brief summaries. Columbia Law School’s Climate Law Blog has a rather good summary, with links to relevant cases and to climate research used in the complaint (1). (Everything I did not learn directly from the complaint document, I learned from this blog post or from the sources linked therein. It is well worth a read.) The elevator pitch for the case is that the plaintiffs are seeking damages for the harm caused by hurricanes Irma and Maria in 2017, for which the defendants are partly to blame, as they are responsible for an estimated 40% of greenhouse gas (GHG) emissions from 1965 to 2017. It would appear that the starting date of 1965 was chosen because, in that year, a report entitled “Restoring the Quality of Our Environment” was published by President Lyndon Johnson’s Science Advisory Committee. The report included a 20-page appendix on increasing atmospheric carbon dioxide, identifying the burning of coal and oil as the main cause, and predicting further melting ice caps, rising sea levels and acidified oceans as the likely consequences thereof. In that same year, the president of the American Petroleum Institute warned his industry colleagues that the report would likely bring calls to action, imperilling their business (2). The most powerful profit-making enterprise in history saw a threat to its power, and devised a plan to subvert science, government, education and the press to protect itself.
It is generally accepted that the fossil fuel industry is to blame for a large portion of the warming observed in the last century. Scientists going back to the 19th century have speculated that the burning of coal and oil could affect the temperature and chemistry of the earth’s air and water. But legal cases require something a bit stricter than general acceptance. Luckily, the defendants produced their own research, going back to the 1960’s at least (and were made aware of outside research in the 1950’s), indicating that AGW was an evident and accelerating phenomenon. So they could not plead ignorance of the basic science. Furthermore, these companies invested billions of dollars into adapting their businesses for the expected changes in climate. Such adaptations include changing the design of oil rigs to withstand higher and rougher seas, and engineering drilling equipment to operate in a soon-to-be-accessible Arctic. A company may claim to believe something, but their true beliefs are revealed by their investments.
In addition to the generation of (internal) research and the investment in adaptive measures on the basis of such research, the defendants also sought to prevent consumer or government responses to evidence of AGW from negatively affecting the dirty energy business. Oil companies may compete with other oil companies, and the oil industry may compete with the coal industry, but they all stood to lose in a shift away from carbon-intensive sources of energy, and they all stood to gain from efforts to stop climate science from impacting consumer habits and government policy. This shared interest extended to their large industrial customers as well, such as metal smelters and car manufacturers. Accordingly, this panoply of climate-harming business interests collaborated to create a web of think tanks and media fronts, aimed at sowing doubt about the science of global warming (and even claiming that it was a net benefit to the economy and human health).
The section of the complaint detailing the defendants’ propaganda and disinformation campaigns runs over a hundred pages, and is an absolutely vile account of craven, deliberate evil in service to nothing more than greed. I think most people with some awareness of the public “debate” over climate change already presume that the fossil fuel industry is engaged in these sorts of things, but to see a historical timeline of events, naming organizations and persons involved, is especially affecting. And by “affecting”, I mean “moved to thoughts of blood-curdling cruelty”, given that many of these organizations and persons are still active, on this planet, trying to doom us all. Organizations like the Heartland Institute, or the American Legislative Exchange Council, and people like… well, the people I looked up so far are dead, which is nice. But there’s a university-to-think-tank pipeline feeding new half-bright shills into the propaganda machine every day, largely funded by the surviving Koch brother. Oh yeah, I forgot for a minute that one of them was dead. Get your smiles where you find them.
This kind of collusion makes things legally interesting (on a niche interpretation of that word). The complaint alleges violations of the United States’ “Racketeer Influenced and Corrupt Organizations” Act, or RICO law as it is known colloquially. Specifically, it alleges that the coordinated efforts of the fossil fuel industry, along with other industrial concerns, to obfuscate climate science and prevent regulation constitutes an illicit racket. Not just because cooking the earth and acidifying the oceans are bad things to do, but also because these businesses materially benefited by obscuring evidence of these harms. They also reinvested some of these revenues back into ongoing disinformation operations, compounding the racketeerishness of their conduct. The fact that most of the defendants are massively vertically integrated, and composed of cannibalized former competitors, adds an element of monopoly abuse to the situation as well. Sensing that their disinformation campaign might eventually prove ineffective, the fossil fuel industry meanwhile intensified exploration and extraction, with the dual goals of (a) selling off as much of their reserves as possible while they can, and (b) depressing prices with a supply glut, so that alternative energy sources suffered an artificial price disadvantage. This had the side effect of massively increasing GHG emissions and locking more economies into fossil fuel dependence, ensuring yet more GHG emissions to come.
The RICO aspect of the complaint helps the plaintiffs in at least two ways (as far as this non-lawyer can tell). First, it makes it easier to file a complaint in Puerto Rico’s district, as it is sufficient that the defendants “transact affairs” in the legal venue where the complaint is filed. Second, it provides for the compulsion of persons residing outside the venue to appear. The racketeering aspect also transforms merely evil behaviour, like spreading Earth-endangering lies, into mail and wire fraud, which in this pants-on-head-crazy world are more actionable offences than poisoning an entire planet.
The plaintiffs list 14 “causes” (offences constituted by the defendants’ actions). The first three of these allege that the defendants perpetrated consumer fraud by hiding information about AGW risks, causing plaintiffs to continue buying the defendants’ products and investing in their companies, with the presumption that the plaintiffs would have done otherwise had they not been deceived. These causes call for damages in excess of $75,000 from all defendants. I’m sceptical of the idea that Puerto Ricans, being humans, would really change their behaviour all that much in response to information. But they were at least entitled to have that information.
The fourth through seventh causes are the RICO allegations, claiming that the defendants’ misinformation campaign (which proceeded by acts of wire and mail fraud) contributed to the increased severity of the 2017 hurricanes (by preventing effective regulation of carbon emissions, and diversification away from fossil fuels) and deprived Puerto Rican municipalities of important information about their special risk from “hotter and wetter” hurricanes. The damages claimed for these causes include all costs resulting from the hurricane, from infrastructure destruction to livestock deaths to mental health services. No amount is quoted, but damage estimates from the US Government Accountability Office are on the order of hundreds of billions of dollars.
The eighth cause is antitrust violations arising from efforts to block energy alternatives from the market. No damages are specified, but they would be trebled, whatever they are. The ninth and thirteenth causes are, respectively, public and private “nuisances” under Puerto Rico law, covering anything injurious to health, well-being or the enjoyment of property. Catastrophic global warming fits the bill. Damages of at least $75,000 are requested on each cause. The tenth cause is the failure of the defendants to warn the plaintiffs (or humanity at large) of the dangers associated with their products, which the defendants had a special duty to do since their own research revealed such dangers. The following paragraph from this cause bears quotation: “Defendants’ conduct was so vile, base, and contemptible that it would be looked down upon and despised by reasonable people, justifying an award of punitive and exemplary damages in an amount subject to proof at trial, and justifying equitable disgorgement of all profits Defendants obtained through their unlawful and outrageous conduct.” Hear, hear. Also, at least another $75,000, please. (If I ever go to law school in the US, my first question will be “what’s the deal with $75,000 awards?”)
The eleventh and twelfth causes relate to “design defects”, i.e. that fossil fuels are inherently defective because their normal use causes more harm than good. The defendants are both strictly liable, since they sold the products, and double-dog liable for negligence since the defendants knew or should have known that their products had this “defect” (i.e. that they threatened life as we know it). Again, the plaintiffs seek damages for all hurricane-related costs plus punitive damages and also at least $75,000.
The final cause is unjust enrichment, which basically covers all the atmosphere-juicing and science-obscuring and government-duping activities of the defendants, and calls for them to compensate the plaintiffs (that is, all the municipalities of Puerto Rico) for all present and future costs arising from the 2017 hurricanes, as well as disgorging all profits derived from their misconduct, and additionally “punitive damages in such amount as will sufficiently punish the Defendants for their conduct and as will serve as an example to prevent a repetition of such conduct in the future.”
This last bit raises questions far outside the scope of a legal filing. How can someone, or some group of people, be sufficiently punished for causing harm on a global scale? Even restricting our scope of concern to humans (which, in the case of AGW, would exclude the largest and most severely affected group of victims), it seems impossible. Consider the analogy of a restaurateur selling poisoned food, knowingly and callously, not out of any desire to kill, but simply because all the food they have to sell is poisoned and they don’t want to dispose of it at a financial loss. Suppose they kill a hundred people, and maim a hundred more. How much money could make the victims and their families whole? Probably no finite amount, and certainly not the kind of money you make selling poisoned food one plate at a time. How much labour could you extract from the poisoner, in punishment and in compensation? Certainly not enough in their remaining years to outweigh the harm done. You can’t hang them 100 times as retribution for 100 murders (you could, actually, and such symbolic punishments of dead bodies isn’t all that rare in history, but I doubt the District of Puerto Rico would prescribe such a remedy…). I suppose you could make a case for torture in such circumstances, if you were more concerned with retributive balancing than with maintaining clean hands. (“You might say that, but I couldn’t possibly comment”, to quote F.U.) There are crimes so great in scale and severity that all the money, work, life and pain that can be extracted from the perpetrators still amounts to a pittance compared to the harm to be redressed. That is one reason why justice, in the sense of proportionality, is not always a workable or satisfiable standard of right. Luckily for the plaintiffs in this matter, they are not trying to balance the global scales of justice, but merely seeking redress for their own wrongful suffering. If they succeed in finding satisfaction, and subsequent cases follow their precedent, how many more victims can be compensated before the malefactors run out of money? Such is the tragedy of extractive industry; it destroys more value than it keeps for itself. They have burned down our home to sell charcoal, and we will never see it rebuilt.
(1) https://blogs.law.columbia.edu/climatechange/2022/12/02/municipalities-of-puerto-rico-v-exxon-a-unique-class-action-against-fossil-fuel-companies-presses-for-climate-accountability-in-the-united-states/
(2) https://theecologist.org/2018/nov/28/time-running-out-says-oil-chief-1965