January 4, 2022
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When Minnesota Attorney General Keith Ellison announced in June 2020
that his office had filed a complaint against climate change, the litigation strategy he
described was relatively new for a climate change case.
Rather than suing the oil industry for causing climate change,
Minnesota sued the American Petroleum Institute, ExxonMobil Corp. and
three Koch Industries entities for allegedly participating in a campaign to
misleading the Minnesotans about the links between climate change and fossils
The theory behind Minnesota v. American Petroleum Institute is that the
the oil industry has known since the 1950s, based on the research of its
own scientists, that the use of fossil fuels was the cause of climate change.
But rather than alerting the public to the dangers of using their
products, the defendants – and in particular the API, which is the largest
United States Oil and Gas Trade Association – buried the evidence and
launched a public relations and marketing campaign to undermine the
climate change science and persuading consumers to dismiss concerns
on the use of fossil fuels.
The complaint includes excerpts from industry statements
scientists warning that uninterrupted use of petroleum products would have dramatic environmental impacts. It also includes images of industry advertisements casting doubt on these sermons, including one with a cartoon image of a chicken under siege under the caption, “Who told you the earth is warming … Little Chicken?” “
The state filed a lawsuit in Ramsey County District Court, making allegations based entirely on state law – in particular, Minnesota laws prohibiting consumer fraud, the practices deceptive marketing, misrepresentation in advertising and Minnesota common law.
The state lawsuit asked the court to prohibit further violations of Minnesota law, order the defendants to pay restitution for damages allegedly suffered by the people of Minnesota as a result of past violations, and to order the defendants to fund a public education campaign to correct misconceptions about climate change allegedly caused by their marketing and public relations efforts.
Since the case was filed, procedural issues have arisen. The defendants immediately returned the case from state court to U.S. District Court for the District of Minnesota, likely because federal courts are widely seen to be more favorable to oil and gas interests.
But in March 2021, the federal court rejected all of the defendants’ arguments that the case should be heard in federal court and referred it to state court. The defendants appealed and asked the federal judge to stay his removal order while the appeal was pending. In August 2021, the judge granted this request.
The result of the stay is that the case is in limbo until the United States Court of Appeals for the Eighth Circuit decides which court should hear it. The parties have yet to reach any of the substantive issues in the case, and it is unclear when they might have the opportunity to do so, as the timing of the appeal is uncertain – so uncertain, in fact, that the district court said it would reassess the stay if the appeal is not resolved within 12 months.
While the litigation in Minnesota v. API may be on hold, the strategy behind the lawsuit is gaining traction elsewhere. In September 2021, the state of Vermont filed a lawsuit under Vermont consumer protection laws, alleging that oil industry marketing misled Vermont consumers about the climate impacts of the use. of fossil fuels.
Congress has also taken up this line of inquiry. On October 28, 2021, two congressional committees held a joint hearing to examine the fossil fuel industry’s campaign to spread misinformation about the role of fossil fuels in global warming. The hearing followed letters requesting internal documents relating to the industry’s public relations efforts, to which the industry responded by providing documents already available to the public.
Lawmakers were clearly not satisfied. After the hearing, Representative Carolyn Maloney, DN.Y., chair of the House Committee on Oversight and Reform, said her committee would step up the pressure by issuing subpoenas requiring production of internal documents not provided previously.
The Minnesota lawsuit also drew comparisons to the historic tobacco litigation of the 1990s. The 1994 state lawsuit against the tobacco industry in Ramsey County District Court, Minnesota v. Philip Morris, alleged a 50-year conspiracy to defraud Minnesotans about the dangers of smoking and demanded money for, among other things, a corrective public relations effort. It was the only state case against the tobacco industry that went to trial.
The state managed to gain access to 35 million pages of previously secret tobacco industry documents and won the day against the defendants after a 15-week trial. The case ultimately resulted in the main settlement of $ 206 billion between major tobacco companies, 46 states in the United States, the District of Columbia and five U.S. territories, which remains the largest legal settlement in history.
Representative Ro Khanna, D-Calif., Chairman of the House Oversight Committee on the Environment, compared the interrogation of oil industry executives before his committee to the 1994 interrogation of tobacco executives on the addictive characteristics of their products. Tobacco executives have denied knowing that nicotine was addictive – despite internal industry research showing otherwise – fueling a backlash that helped with the eventual settlement.
Minnesota insiders who worked on the tobacco case have recognized the parallels, and Ellison has spoken out about them as well. In October 2019, a year before the Minnesota v. API, at an event at the University of Minnesota Law School, Ellison recalled the success of the tobacco litigation in Minnesota and suggested that climate change litigation could follow a similar pattern.
Placed in context, Minnesota v. API is another creative attempt by motivated plaintiffs to hold carbon majors broadly accountable through litigation. Like Massachusetts v. ExxonMobil, first filed in Massachusetts Superior Court in 2019, which added a viable angle to state titles to climate change lawsuits, opens up another front of litigation – greenwashing and deception – against carbon majors.
These two new angles follow the more traditional nuisance lawsuits, which have stalled as parties await the outcome of the Baltimore v. BP PLC of the United States Court of Appeals for the Fourth Circuit.
Skirmishes over whether climate change lawsuits will go to federal or state court – years after the lawsuits have started – confirm the high stakes in these cases and the gravity of the lawsuits. Also important is that these lawsuits were not dismissed as the first wave of climate change lawsuits, including Comer v Murphy Oil USA Inc. and Kivalina v ExxonMobil.
Removing the obstacle posed by Federal Civil Procedure Rule 12 (b) (6) may represent confirmation of the widely held belief that it is only a matter of time before any such prosecution is successful. . It also confirms that improving the science of attribution in support of prosecution reduces the likelihood of successful practice of movement by defendants.
As the science of attribution continues to advance, other substantive defenses may be limited and new causes of action may become viable as well. The trend must also be seen in the context of changing public opinion and an increased call for accountability and climate justice.
Lawsuits like these will continue and evolve until there is a political solution to climate change. The danger of creating a policy through litigation can have unforeseen consequences for carbon majors and their liability insurers.