#ExxonKnew: Making Polluters Pay for
For more than 50 years, the most powerful oil and gas companies knew exactly what they were doing. They knew that their activities were driving climate change, and they knew the catastrophic damage it would produce. Instead of taking steps to reduce climate risks, these companies ignored their own scientific reports on climate change, all in pursuit of higher profits and at the expense of the people and planet.
Today, the effects of this gross negligence are visible across the globe. From the new norm of massive super storms that destroy homes and coastlines to record breaking heat waves, climate change is here. In our region of Virginia, Maryland and DC, the impact of climate change is particularly large due to our miles of coastline, which are threatened by sea level rise.
Fossil fuel companies should be responsible for paying for the climate damage they caused. Fortunately, countless others agree. There are several bold local and state leaders attempting to hold companies like Exxon accountable in court. As these cases move up through the legal system, we may finally have accountability on the horizon.
The Biggest Polluters Knew They Were Causing Climate Change
A Brief Timeline:
As far back as 1968, oil and gas companies knew of climate change and the role they played in its cause. They knew that climate change would cause sea level rise and other environmental shifts that would damage the planet.  They continued to gather knowledge for decades regarding how their business practices contribute to a changing climate.
In a 1977 presentation, and again in a 1978 briefing, Exxon scientists warned the Exxon Corporation Management Committee that carbon dioxide concentrations were building in the Earth’s atmosphere at an increasing rate, and that the emissions were attributable to fossil fuels and contributing to global warming.
“There is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels [and that] Man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategies might become critical.” 
The continued rejection by Exxon of their own scientific reports soon spread to other actors in the fossil fuel industry, creating a network of fraud and conspiracy among major fossil fuel companies.
In 1991, Shell produced a film called “Climate of Concern.” The film advises that:
“…while no two [climate change projection] scenarios fully agree [they] have each prompted the same serious warning. A warning endorsed by a uniquely broad consensus of scientists in their report to the UN at the end of 1990.”
They warned that abnormal weather and sea level rise of one meter over the coming century would increase in frequency. More specifically, Shell described the impacts of anthropogenic sea level rise on tropical islands:
“barely afloat even now, [f]irst made uninhabitable and then obliterated beneath the waves. Wetland habitats destroyed by intruding salt. Coastal lowlands suffering pollution of precious groundwater.”
They warned of “greenhouse refugees,” people who abandon homelands inundated by the sea, or displaced because of catastrophic changes to the environment. The video then concludes with a stark admonition:
“Global warming is not yet certain, but many think that the wait for final proof would be irresponsible. Action now is seen as the only safe insurance.” 
In 1996, Exxon released a publication called “Global Warming: Who’s Right? Facts about a debate that’s turned up more questions than answers.” In the publication’s preface, Exxon CEO Lee Raymond stated, inaccurately and against their own research:
“taking drastic action immediately is unnecessary since many scientists agree there’s ample time to better understand the climate system.”
The following article then described the greenhouse gas effect as “unquestionably real and definitely a good thing,” while ignoring the severe consequences that would result from the influence of the increased carbon dioxide concentration on the climate.
This public document directly contradicted Exxon’s internal reports and peer-reviewed science. It attributed the rise in global temperature since the late 19th century to “natural fluctuations that occur over long periods of time,” rather than to the anthropogenic emissions that Exxon and other scientists had already confirmed were responsible. 
In 1997, Mobil (purchased by Exxon in 1998) also contributed to public misinformation campaigns, paying for a series of “advertorials” in the New York Times. The ads discussed various aspects of the public discussion on climate change and claimed it was ‘unsettled’ science. The 1997 advertorial to the right argued that economic analysis of emissions restrictions was faulty and inconclusive and therefore a justification for delaying action on climate change. 
These misinformation campaigns led by Exxon and other Big Oil and Gas companies mislead the public to believe that anthropogenic climate change was not the scientific consensus. And it paid off for them. In 2007, a Yale University-Gallup poll found that while 71 percent of Americans believed global warming was happening, only 48 percent believed that there was scientific consensus on it. 
Costs & Impacts of Climate Change
The direct costs of climate change are massive, from infrastructure to healthcare. Below is a summary of these costs. Exxon and other major polluters must be held responsible for contributing to this crisis.
The Solution: Lawsuits and Litigation
Tobacco Settlement as Precedent
Holding the Big Oil and Gas companies accountable for climate change is not without precedent. They knew their actions were causing climate change, yet they still intentionally misled the public. Their strategy is actually strikingly reminiscent of the one the tobacco industry used – which eventually led to a major settlement in 1998.
For decades, the tobacco industry wrote the playbook on deceiving the public while continuing to sell a product they knew was linked to cancer and other health concerns. The tobacco industry manufactured uncertainty on whether their products posed health risks. They manufactured this uncertainty by claiming that scientific reports linking tobacco products to cancer used flawed science. They even hired and promoted their own scientists to cherry-pick facts and mislead the public on research linking tobacco use to cancer. 
Once the tobacco industry’s deception came to light, states and private actors began to sue major tobacco companies for intentionally misleading the public. These suits resulted in a $206 billion settlement with 46 states for damages the tobacco industry caused through their misinformation campaign.
Major oil and gas companies followed this very same playbook. Because they also knowingly deceived the public, it would not be unprecedented for them to also be held responsible for climate damages caused by their deception. Recently, some cities and states have decided to sue the oil and gas companies in order to get them to pay for their impact on climate change.
Many people believe that passing legislation that mandates that the biggest polluters pay their fair share for the cost of adapting to climate change is the best way to hold them accountable. However, this has been difficult to impose because the fossil fuel industry has successfully lobbied and has bought out politicians at all levels of government. This has forced some communities to get creative in finding a way to make sure that the biggest polluters will pay their share of the costs.
Some cases have fared better than others in their mission. For example, New York City recently had their case against the oil and gas companies dismissed after it was moved from state court to federal court, where judges have relied on federal legislation to determine how the oil and gas companies can be held accountable.
In 2016, a group of 17 State Attorneys General formed a coalition that is considering bringing charges against Exxon for fraud after learning about Exxon’s public misinformation campaign. These Attorneys General have also called on the FBI to open up an investigation for fraud and conspiracy against the oil and gas companies, alleging that the companies spread misinformation in an effort to increase short-term profits.  Because the Trump Justice Department has not opened up an investigation into this conspiracy, states and cities have decided to take action themselves and sue the biggest polluters for the damages that they have caused.
Baltimore just reached a major milestone and is now the first case which has withstood a motion for removal to federal court. Baltimore’s case will be heard in state court in late 2020. The complaint contends that the biggest oil and gas companies have single-handedly released about 15 percent of all carbon dioxide emissions globally, causing climate change and sea level rise, which they should be forced to pay for. Baltimore’s complaint alleges that the companies violated state laws including public and private nuisance, trespassing, failure to warn, design defect, and others. Moreover, the complaint requests that the court administer additional penalties against the companies because they knew that they were causing climate change as far back as 1968, but either ignored their own internal scientists, or spread misinformation about climate change that led to further pollution.
The state of Rhode Island has filed a similar suit as Baltimore, and in late 2019 had their case remanded to state court after the oil and gas companies attempted to remove the case to federal court. The court in the Rhode Island case cited the court in the Baltimore case in its decision to remand the case back to state court. These two examples are showing a change in the way that court’s are looking at cases where communities sue oil and gas companies in order to force the companies to pay for their contribution to climate change.
On September 10, 2020, Delaware Attorney General Kathy Jennings filed a lawsuit against 30 fossil fuel companies and the American Petroleum Institute, with BP, Chevron, Shell, Exxon Mobil, and Marathon among the named defendants. Delaware alleged common law causes of action against all defendants for negligent failure to warn, trespass, and public nuisance. Additionally, Delaware alleged that the fossil fuel companies named as defendants had violated the Delaware Consumer Fraud Act by misrepresenting or concealing material facts regarding fossil fuels which were relied on by consumers when purchasing their products.
On each count, Delaware alleged that the defendants knew or should have known of the severe risk posed by their products and thus had a duty to adequately warn consumers, including the State and its residents. By failing to disclose these risks and instead disseminating marketing materials either refuting generally accepted scientific knowledge or advancing contrary pseudoscientific theories, the defendants breached this duty in a way that was wanton and willful and that caused the State and its residents to suffer the environmental harms associated with increased fossil fuel consumption both directly and proximately. Furthermore, the fossil fuel companies’ misrepresentations are expected to result in the unconsented-to entrance of flood waters and extreme precipitation onto state-owned property in a manner that is both substantial and unreasonable so as to constitute trespass and public nuisance. Lastly, as marketers of fossil fuels, the fossil fuel companies named as defendants made statements or omissions of material fact so as to misrepresent the effects of fossil fuel consumption and the mitigation efforts supposedly undertaken by the companies. By making such misrepresentations with the intent that Delaware consumers would rely upon them when the defendants knew or reasonably should have known that such representations were misleading, the companies violated Delaware’s Consumer Fraud Act, leading directly and proximately to the injuries complained of.
On June 25, 2020, D.C. Attorney General Karl A. Racine, filed a lawsuit against Exxon, BP, Chevron, Shell, and their subsidiaries in the Superior Court of the District of Columbia. The complaint alleges violations of the D.C. Consumer Protection Procedure Act against each defendant company. The complaint states that these companies “have systematically and intentionally misled consumers in Washington, DC about the central role their products play in causing climate change.” More specifically, the defendants have known for decades that their products significantly contribute to climate change and have still “funded, conceived, planned, and carried out a sustained and widespread campaign of denial and disinformation about the existence of climate change and their products’ contribution to it.”
Once the public was aware of the link between the usage of fossil fuels and climate change, the case argues that the defendant companies began “misleading consumers about their level of investment in cleaner energy sources.” Each company invests less than 2.5% of its total capital expenditures in low-carbon energy sources, and each company has continued ramping up fossil fuel production globally. As a result of being deprived of accurate and important information regarding the “consequences of their purchasing decisions,” DC consumers have been harmed, and the defendant companies should be held accountable. The District of Columbia requests that the defendant companies stop all deceptive business practices and pay damages for the harms they have caused.
On June 24, 2020, Minnesota Attorney General Keith Ellison filed a lawsuit against the American Petroleum Institute, Exxon Mobil, and Koch Industries, with Koch subsidiary Flint Hills Resources also named specifically as a defendant. The suit alleged causes of action against all defendants for violation of the Minnesota Consumer Fraud Act, engagement in deceptive trade practices under Minnesota statute, and violation of Minnesota’s False Statement in Advertising Act. Additionally, the suit brought a common law claim for fraud and misrepresentation against all defendants, and further alleged both negligent and strict liability failure to warn claims against Exxon, Koch, and Flint Hills.
Minnesota’s suit relies centrally on the harm that the fossil fuel industry inflicted on Minnesota consumers by misrepresenting or concealing the environmental risks posed by its products. Under Minnesota law, any manufacturer that markets a product which is reasonably likely to cause injury has a duty to warn consumers of that danger, and that a duty to warn likewise exists when a manufacturer has actual or constructive knowledge of that danger. The suit alleges that the defendants had actual knowledge of the danger posed by fossil fuel consumption, yet continued to make misleading statements and omissions to misrepresent the danger or downplay the certainty with which climate change could be linked to fossil fuel consumption. Furthermore, the defendants are alleged to have conspired amongst each other in order to ensure that the risk posed by fossil fuel consumption remained concealed. Such conduct is claimed to share a causal nexus with the harms suffered by Minnesotans as a result of climate change, making the state’s various consumer protection laws applicable.
On September 9, 2020, the City of Charleston, South Carolina filed a lawsuit against 24 fossil fuel companies, including Exxon Mobil, Shell, Chevron, BP, and Marathon. The suit represents the first claim filed by a community in the American South against fossil fuel companies for their role in contributing to climate change by misrepresenting the environmental impacts of their products. Charleston’s suit alleges five common law causes of action against all named defendants, including public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass. Additionally, the suit alleges a sixth cause of action for violation of South Carolina’s Unfair Trade Practices Act.
Each of Charleston’s common law claims relies on the fact that the fossil fuel companies named acted affirmatively and knowingly, both individually and in concert with one another, to conceal or misrepresent information relating to the environmental risks associated with fossil fuel consumption. The fact that the companies had actual knowledge of the risks and were therefore the parties best positioned to mitigate them makes their failure to communicate the risks unreasonable. As a result of the companies’ unreasonable conduct, climate change is expected to produce higher sea levels and more extreme weather patterns, which will in turn cause the unconsented-to entrance of flood waters onto city property and property owned by city residents. The entrance of flood water and the resulting damage are characterized as trespass and nuisance, respectively. Furthermore, the named defendants all knew or reasonably should have known of the danger posed by fossil fuel consumption, charging them with a duty to warn consumers of the associated risks. By instead acting affirmatively to conceal or misrepresent the risks, the fossil fuel companies breached their duty in a way that directly and proximately resulted in increased fossil fuel consumption and the harms alleged by the City.
On September 14, 2020, Connecticut Attorney General William Tong filed a lawsuit against Exxon Mobil, alleging that the company’s business practices misled Connecticut consumers regarding the harmful effects of fossil fuel consumption. In eight counts of action, Connecticut alleged that Exxon Mobil willfully engaged in a “campaign of deception” intended to conceal or misrepresent the dangers posed by its business practices. In addition to claiming that Exxon Mobil intentionally misrepresented its actual knowledge of the impact of fossil fuel consumption on global climate change in violation of Connecticut’s Unfair Trade Practices Act, the lawsuit further alleged that the company engaged in a deceptive “greenwashing” campaign intended to misrepresent the environmental impact of its practices to consumers. The lawsuit also broadly charged Exxon Mobil with acting in a way contrary to Connecticut’s public policy requiring human activity to be conducted “in harmony with the system of relationships among the elements of nature.”
Connecticut’s lawsuit alleges that Exxon Mobil’s actions directly harmed consumers in the state by delaying the transition to cleaner alternative fuels, allowing the negative impacts of fossil fuel consumption to accrue over a longer period of time. These negative impacts, most prominently including climate change, are expected in turn to be borne most directly by the state and its citizens. By downplaying the catastrophic harm that fossil fuel consumption was likely to ultimately inflict, exaggerating the uncertainty regarding environmental impacts within the scientific community, and continuing to pursue fossil fuel exploration and marketing, Exxon Mobil both violated the Connecticut Unfair Trade Practices Act’s prohibition on making false or deceptive statements regarding business practices and more generally contravened Connecticut public policy.
In March 2020, the city and county of Honolulu, HI, filed suit. In October, Maui County did the same. Their arguments are very similar to those above, seeking damages over Big Oil’s purposeful misinformation campaigns. Since Hawai’i is very coastal,
If you believe that the oil and gas companies need to be held accountable for their contribution to climate change, please call your member of Congress and ask them to oppose any legislation that would release the fossil fuel industry from liability. If you live in a community that is not currently in legal proceedings with the oil and gas companies, write to your mayor, city council or State Attorney General and ask them to file suit.
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