Climate Lawfare Supporters Admit That Attribution Science Is Failing In Court

Hey, they said it.

A group of academics – who are outspoken supporters of the climate litigation campaign – released a report this week that admits that the climate attribution science currently being deployed by plaintiffs attorneys has serious flaws.

The report states:

“We find that the evidence submitted and referenced in these cases lags considerably behind the state-of-the-art in climate science, impeding causation claims.”

Attribution science – the flawed attempt to assign a certain amount of carbon emissions to specific companies – has long been viewed with skepticism, even among supporters of climate litigation.

What is surprising about that latest development, however, is that the wealthy financiers of climate lawsuits would bankroll a report that confirms this paid-for science has serious limitations.

The report explains how attribution science isn’t holding up in the courtroom:

“However, plaintiffs have been unable to overcome even the more flexible causation tests applied in several jurisdictions which ask if damages are ‘fairly traceable’ to defendants’ actions.  This is typically due to courts’ finding that the evidence provided does not substantiate the connection between individual emitters’ actions and plaintiffs’ losses.

“…Our analysis shows that when courts considered evidence on causation, they typically found that plaintiffs failed to demonstrate that defendants’ emissions caused the alleged impacts.”

Others Aren’t Buying Attribution Science Either

This report isn’t the first time that supporters of climate litigation have admitted that using attribution science to support litigation has real problems.

Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University, and major proponent of lawsuits said in 2017 that attribution science has failed in court and has serious problems:

“A further level of attribution that some are seeking is to say that particular companies are responsible for a certain percentage of greenhouse gas emissions. That has not succeeded anywhere, and there’s now a petition pending before the Philippines human rights commission that asserts that and is trying to establish that. But, otherwise, there was a case in Germany that tried to assert that, and it was dismissed as being too remote.

“That’s a very, very challenging prospect, particularly since we all know that climate change is the result of the cumulative emissions of millions of emitting sources over more than a century. And so attributing climate impacts to particular companies is very difficult.” (emphasis added)

Roger Pielke Jr., a professor at the University of Colorado’s Center for Science & Technology Policy Research, said that attribution research has been used as “stealth advocacy” and that it should be held to high academic standards:

“Climate event attribution research as stealth advocacy … So-called event attribution studies are perfectly legitimate but should be held to the same level of rigor as any other area of research. Deploying them as a basis to file lawsuits or influence policy making only underscores the need for such rigor.” (emphasis added)

Attribution Science Was Designed to Support Litigation

While the fact that this report was published in the first place is noteworthy, its conclusions shouldn’t come as a shock.

Attribution science is an area of research that’s not being used to gain a better understanding of climate change, rather it was designed solely to aid climate litigation. In the very first paragraph of the report, the authors acknowledge this is the goal:

“We conclude that greater appreciation and exploitation of existing methodologies in attribution science could address obstacles to causation and improve the prospects of litigation as a route to compensation for losses, regulatory action, and emission reductions by defendants seeking to limit legal liability.”

One of the top authors of the report, Friederike Otto, even told E&E News in April that’s the reason behind attribution science:

“But Friederike Otto, a climate expert at the University of Oxford who has worked with [Myles] Allen, said her efforts to link extreme weather events to climate change have always been tied to the possibility of legal action. ‘Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind,’ she said.” (emphasis added)

E&E News also reported in 2019 that Otto “said she talks ‘a lot with lawyers’ about how attribution science could be used as a litigation tool.”

And Otto isn’t just boosting litigation with reports such as these; she’s an active supporter of the campaign and has signed court briefs in favor of the lawsuits filed by Oakland and San Francisco, Baltimore, and Rhode Island.

Another lead activist pushing attribution research is Richard Heede of the Climate Accountability Institute – the group that hosted the infamous La Jolla conference in 2012 where the climate litigation playbook was devised.

Heede’s 2019 “Carbon Majors” report plainly stated its purpose was to hold energy companies “legally responsible” and to support litigation:

“In particular I want to thank Peter Frumhoff, who has been the champion not only of the database but of its scientific value to climate modelers, analysts, climate leaders and policy experts, as well as to litigators in pursuit of climate justice and the protection of human rights.” (emphasis added)

Wealthy Anti-Energy Group Funded Report

What is absolutely not a surprise is that this report was funded by the Foundation for International Law for the Environment (FILE), whose goal is “to accelerate legal action globally to address the climate and nature crises.”

This just further shows that attribution science isn’t done in the pursuit of greater scientific understanding, but to aid litigation. FILE also receives money from the Children’s Investment Fund Foundation (CIFF), whose website states:

“Through our litigation strategy, we fund organizations to tackle climate change by informing, implementing and enforcing laws and influencing policies.”

CIFF’s founder and board chair is Chris Hohn, who, as EID Climate noted last year, is a British billionaire that has spent millions of dollars in the United States attempting to convince states and municipalities to file climate lawsuits against energy companies. RealClear Investigations reported:

“Among left-leaning billionaires, Michael Bloomberg and Tom Steyer are enjoying wide public attention due to their big-spending presidential campaigns. But Hohn, a foreigner unknown to most Americans, arguably exercises comparable if not more influence on U.S. energy and environmental policy through his hedge fund, XR and other advocacy groups.

CIFF has also given money to the Center for Climate Integrity – one of the top activist groups pushing climate litigation in the United States.

Notably, support for this report from FILE was not mentioned in the BBC, the Guardian, or Axios.

Read more at EID Climate