Last week, the three major trade groups representing the fossil fuel industry dodged, just in time, being forced to defend their position on climate change in court. The Trump administration, despite its withdrawal from the Paris climate accord, will not be so lucky.
Last Thursday the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers filed motions to withdraw from their defense of the government in the groundbreaking case Juliana v. United States. Three days earlier the National Association of Manufacturers had done the same. Taken together, these three giants of American industry are retreating as fast as they can from a case that leaves the administration in a legal squeeze.
The administration and the trade groups have been backed into an extraordinary legal corner in the case brought by 21 youngsters, who allege that, for over five decades, the government promoted the use of fossil fuels while knowing that the resulting greenhouse gases would undermine quality of life for future generations. According to the lawsuit, such willfully destructive actions constitute a violation of the plaintiffs' rights to a healthy and safe world, and their ability to pass down a livable planet to their offspring. The young plaintiffs demand that the government impose limits on CO2 and other greenhouse gas emissions to slow atmospheric corrosion. "What we're looking at is for the court to set a constitutional standard for protecting these kids rights that's based on scientific evidence," says Julia Olson, the plaintiffs' chief counsel.
The fossil fuel intervenors may have just barely dodged a bullet from their own gun.
The young plaintiffs, supported by a Eugene, Oregon group of environmental lawyers, Our Children's Trust, filed the initial suit in August of 2015 against the Obama administration. Later that year, the three trade associations requested that the court include them as intervenors in the case—a position akin to being co-defendants. The trade organizations feared that an adverse decision would negatively affect their industries, and that President Barack Obama's Department of Justice would not launch a sufficiently vigorous defense. That changed after the election of Donald Trump, who has reversed Obama's clean power initiative, defunded renewable energy initiatives, and shown his clear tilt toward fossil fuel-reliant industries. In a public statement last week, NAM Senior Counsel Linda Kelly explained the companies' reason for withdrawing from the government's defense: "As the dynamics have changed over the last several months," Kelly said, "we no longer feel that our participation in this case is needed to safeguard industry and our workers."*
But there are other forces at play, kicked into gear by a lawsuit that—despite repeated efforts by the companies and the government to have it dismissed and delayed—has been permitted to move forward by both federal judges who have had a chance to weigh in on the matter over the last two and a half years. These start with the "statement of facts" of the case that the plaintiffs alleged, and the Department of Justice conceded. Such statements are customary on large class-action suits, aimed at offering non-disputed terrain on which a case can be fought.
On January 18th, two days before Trump's inauguration, the Department of Justice formally agreed to 98 facts pertaining to climate change, humans' role in creating it, and its destructive future impacts. (The Obama administration opposed the plaintiffs' demand that the government be compelled to act on those facts with firm CO2 limits).
Imagine the implications for the companies' admitting to, say, fact number 31 in that list: "Climate change is damaging human and natural systems, increasing the risk of loss of life, and requiring adaptation on larger and faster scales than current species have successfully achieved in the past, potentially increasing the risk of extinction or severe disruption for many species."
Elsewhere, the facts start to look like a litany of the reasons Obama signed the Paris Agreement and largely reflect the global scientific consensus. They include:
- That for over 50 years, scientists and policymakers in the U.S. government have been aware of the growing body of research suggesting the disruptive impacts of greenhouse gas accumulation in the atmosphere that will likely get worse over time.
- That the human use of fossil fuels is a major source of CO2 emissions that are a major contributor to climate change, and "place our nation on an increasingly costly, insecure and environmentally dangerous path."
- That emissions of CO2, methane, and nitrous oxide are at "unprecedentedly high levels compared to the past 800,00 years of historical data and pose risks to human health and welfare."
In a number of instances, the Obama-era defense team even clarified the plaintiffs' allegations upward, suggesting they had underestimated the likely consequences of climate change. For example, the youths alleged that atmospheric concentrations of CO2 exceeded 400 parts-per-million in 2013 for the first time in recorded history; the federal defendants, with two more days left in Obama's term, upped the stakes, clarifying that it was "the first time in millions of years." And, in another instance, the plaintiffs asserted that sea level has been rising 3.2 millimeters yearly since 1993; the government disagreed—it's 3.4 millimeters a year.
The government's objections foreshadowed by a day the decision by Trump to withdraw from the Paris climate accord.
The deadline for the intervenors' response to these and other statements of fact was May 25th. That's last Thursday, the very same day that API and their counterparts the AFPM bailed from the case. The NAM bailed three days earlier. Coincidence? Agreeing to any of these or numerous other facts agreed upon by the Obama administration could have opened the door to liability for damages caused by industry products.
These factual statements, then, create a quandary. Since they were already agreed upon by the government defendant, disputing them would have been the burden of the intervenor defendants, in a federal district court in Eugene, Oregon, where there's a far higher standard of evidence than, say, in the U.S. Congress. By withdrawing, not only did these industry groups avoid having to go on the record before a judge challenging widely accepted science about climate change; they also avoided a potentially divisive situation within their ranks: Many members of the NAM—for example, Apple, General Electric, Nissan, and many others—actually agree officially with the overall scientific findings on climate change. On the other hand, if the trade associations agreed to the admissions of fact, their member-companies, including all of America's oil companies, could open themselves to liability for their own contribution to climate change.
Then there's the document question. Facing major discovery demands, the companies tried to shield themselves behind the trade associations: Their lawyer, Frank Volpe, argued that API had no authority over the decisions of its member companies to provide requested documents. On a May 18th teleconference between the parties, Judge Thomas Coffin was skeptical. He questioned whether the companies could, on the one hand, join the case in order to fight it, and, on the other hand, argue that their internal records were not fair game for the plaintiffs. "I don't think they should it have it both ways, quite candidly," Coffin stated, according to a transcription of the call.**
Had the case proceeded with the trade associations onboard, their ability to shield the companies may not have held up, and documents shedding light on their knowledge of climate change and contributions to it were at risk of being prodded from the shadows—as has been occurring with API's most prominent member, ExxonMobil. That company is currently being investigated by the New York attorney general for privately collecting scientific information about the risks of climate change from the company's own scientists but publicly denying the existence of climate change, while helping to finance institutions that promoted climate-change denial.
Now there is no easy way out for the government. The companies' retreat leaves Trump and his team alone to face the quandary of what to do about those difficult facts. On May 31st, one day before Trump announced his decision to abandon the Paris climate accord, the plaintiffs got their answer: The government objected to requests for admissions on 10 important issues. These includes such statements as:
- "[G]lobal warming of 2 degrees C above the pre-industrial global average temperature threatens the public health and welfare of current and future generations;" and:
- "[C]urrent, valid, peer-reviewed and published climate science supports an atmospheric CO2 concentration target of 350 ppm or below by the year 2100 as having a high likelihood of avoiding unusually serious risk of harm and threats to public health and welfare of present and future generations." The Department of Justice has objected to each assertion of climate-change impacts on the grounds of executive privilege, and that by admitting to them they'd be "render[ing] a legal conclusion by virtue of the admission."
In other words, the government's objections foreshadowed by a day the decision by Trump to withdraw from the Paris climate accord.
Still, there's another slip awaiting the administration: Because the government has objected to those and other facts central to the plaintiff's climate claims, it is now vulnerable to discovery requests from the plaintiffs' legal team, which is seeking to document the government's evasion of responsibility for the impacts of climate change. The numerous facts to which the Obama administration agreed sent a strong signal that the government is in possession of documents backing up basic scientific assertions. As Olson commented shortly after the objections were filed on Tuesday night: "We will begin taking depositions of government witnesses … and move to compel substantive discovery responses from the government." The case is shaping up to be a battle over climate change in a courtroom in Eugene. "Trump can withdraw from Paris but not from our lawsuit," Olson said.
Meanwhile, Coffin is expected to rule on the companies' requests to withdraw within two weeks. It looks likely that the fossil fuel intervenors may have just barely dodged a bullet from their own gun.
*Update—June 2nd, 2017: This article has been updated to reflect that Our Children's Trust is based in Eugene, Oregon.
**Update—June 2nd, 2017: This article has been updated with the name of the intervenors' lawyer.