Legal Landslide Against Big Oil Gains Speed; Failure To Warn & Fraud Core Of Multiple State Claims
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The latest round of lawsuits draws from the dozens filed across the country since 2017, but with a few new twists. They continue to charge fossil fuel companies with public nuisance for producing and marketing a dangerous product, but they increasingly allege the companies acted together to also violate state consumer fraud statutes. And for the first time, they have begun to include the industry’s largest trade group, the American Petroleum Institute (API), among the alleged culprits in deceiving the public. “There is a very strong evidentiary basis for showing that these companies knew about the impacts of climate change and colluded to prevent the dissemination of that information,” said Jessica Wentz, a senior fellow at Columbia University’s Sabin Center for Climate Change Law.
Nearly all the lawsuits have been filed in state courts, alleging state law violations. Fossil fuel companies have doggedly tried to have the cases moved to federal court, where they think they will have a better chance at getting them dismissed, but a string of appellate court rulings have pushed them back to state court. The companies have asked the Supreme Court to weigh in, which seems increasingly unlikely as the circuit courts have all issued similar rulings and the Supreme Court usually only intervenes at this point if the circuits have issued conflicting rulings. Those decisions have likely encouraged the filing of more suits, a trend experts expect to continue.
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Notably, the newer cases have morphed from focusing heavily on nuisance claims, to include claims of failure to warn and creating a public danger, Pat Parenteau, professor of environmental law at the Vermont Law School said. “Fraud, deceit, that’s really the theme,” Parenteau said. “We’re seeing these consumer-based cases, and that’s an interesting development, trying to base a claim for damages, not just sort of penalties or traditional enforcement for violating consumer laws, but actual disgorgement of profits and damages for violating the state consumer laws.”
The municipalities’ strongest claims are failure to warn, Parenteau said. “There’s plenty of evidence now — maybe not for every single defendant, but certainly for the major defendants—to show that they really did know the problem, and in fact, they were taking precautions to protect their own assets from what they knew, and they didn’t warn,” Parenteau said. “Far from it, they conspired to propagandize and confuse and so forth, delay, and I think that’s going to play big time with the jury.” Minnesota, Hoboken and Delaware added API to the mix as a defendant, alleging the trade group worked alongside the companies in a coordinated campaign of deception. Parenteau said the API will “fight like hell,” but will have a tough time shaking the suits. “Their fingerprints are all over these documents in this propaganda and this false advertising and this spin, it’s not like they were passing or innocent bystanders, they’re in the thick of it,” Parenteau said.
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https://www.desmogblog.com/2020/09/28/wave-climate-lawsuits-exxon-api-fossil-fuels
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