Honolulu Uses Climate Lawfare To Sue Energy Companies

Today, the City & County of Honolulu filed its long-anticipated public nuisance lawsuit against ExxonMobil and other major oil and gas companies seeking to hold them responsible for the effects of climate change in the Aloha State.

Many similar lawsuits are pending as it’s debated whether they should be heard in state or federal court.

Josh Stanbro, Honolulu’s Chief Resilience Officer, referenced these lawsuits in today’s press conference, but he failed to mention that none of these lawsuits have been successful.

In fact, in two of the cases where the complaints were judged on their merits—New York City and Oakland/San Francisco, the complaints were dismissed.

Honolulu’s complaint is no different, resulting from a similarly flawed argument of public nuisance theory and driven by plaintiffs’ attorneys who want to profit while potentially leaving taxpayers with a big bill.

Here’s what you need to know about the latest turn in the climate litigation campaign.

Climate Lawsuits Are Failing in Other States

Honolulu Mayor Kirk Caldwell initially announced that he would file this lawsuit on November 5, 2019, but he already knew what he was getting his city into.

Two similar public nuisance lawsuits seeking damages from energy manufacturers were dismissed in 2018.

The suit brought by San Francisco and Oakland was dismissed by U.S. District Judge William Alsup, who said:

“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted.

“Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”

Another federal judge, U.S. District Judge John Keenan, said when dismissing New York City’s suit that courts can’t create climate solutions and that policy should be left to the executive and legislative branches.

The Honolulu complaint also repeats the same failed and false argument that energy companies knew about climate change decades before the public did—despite the clear documentation that the United States government was well aware of and discussing climate change before private companies were.

In similar cases that attorneys general are pursuing, states are arguing that energy companies misled consumers and shareholders.

The case against ExxonMobil brought by the New York attorney general was rejected by the state’s supreme court with the judge stating that the company did not deceive or mislead investors over climate change impacts.

The attorney general’s case unraveled so spectacularly that the office decided to drop two of their four charges at the 11th hour because they knew they were sure to lose. After their defeat, they didn’t even seek to appeal the judge’s decision.

Likewise, in Colorado, a case brought by Boulder County is using the same playbook from New York: relying on a highly-coordinated network of donors, PR agents, activists, and attorneys, including the Rockefeller Family Fund, EarthRights International, Matt Pawa, and the Rocky Mountain Institute.

Furthermore, Boulder County doesn’t even have the support of Gov. Jared Polis (who has made climate a key priority), state attorney general Phil Weiser, key groups like Conservation Colorado, and the Denver Post editorial board poured cold water on the effort, too.

SEE ALSO: Climate Change Lawsuits Falling Like Dominoes

Climate litigation has already failed in California and New York and is struggling to get off the ground in Colorado and elsewhere.

If Honolulu is looking for inspiration, they’re certainly not going to find it in American courtrooms.

Targeting Energy Companies is Hypocritical to Hawaii’s Tourism Industry and Economy

In Honolulu’s attempt to go after ExxonMobil and other oil and gas companies, they’ll only succeed in killing off the golden goose by harming one of the state’s most important industries.

As the most isolated state in the country, Hawaii relies on energy—especially fossil fuels—to help power its economy, bring food and trade to and from the islands, and even keep its unique culture thriving.

Tourism makes up 20 percent of the state’s economy and the only way for tourists to get there is either by airplane or cruise ship—two modes of transportation that require jet fuel and gas turbine engines, respectively.

By targeting energy companies, Hawaii is demonstrating its hypocrisy and ignoring its dependency on fossil fuels; without this energy, tourists won’t be able to travel to the islands and the billions of dollars they spend annually would disappear.

Hawaii is also heavily dependent on trade, requiring $4.5 billion worth of imported goods in 2018.

The state brings in 85% of its food from the mainland U.S. and other countries and also has to import everything else from clothing to household appliances. And just like tourists, these goods arrive by airplanes and ships powered by oil.

This Suit Has Been Manufactured by Mainland Attorneys That Will Cost Hawaii Taxpayers

These climate lawsuits aren’t so much about the climate as they are about private attorneys and so-called expert witness making money at the expense of taxpayers.

The Honolulu case isn’t the result of local, grassroots efforts, but is being led by activist attorneys from the U.S. mainland using Hawaii as a stepping stone in their larger campaign to get wealthy by destroying energy companies.

The plaintiffs are represented by Vic Sher, of the Sher Edling law firm, who is representing various other entities in suits against energy companies.

He’s also worked with Ann Carlson, an environmental law professor at UCLA Law School’s Emmett Institute on Climate Change and the Environment, who has similarly been heavily involved in the Hawaii case and consults for Sher Edling.

Sher and Carlson were featured speakers at an event held by the University of Hawaii’s Richardson School of Law that focused on “legal strategies and the rationale for climate impact lawsuits being pursued across the country,” and was sponsored by two groups leading the climate litigation campaign—the Center for Climate Integrity and the Union of Concerned Scientists.

While it’s not clear yet what Sher’s attorney’s fees are, he and his firm could make a small fortune if the lawsuit is successful.

Sher Edling’s agreement with San Francisco entitles the law firm to 25% of the first $100 million, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.

Taxpayers will also be on the hook. In New York, the attorney general’s office spent over $800,000 in state funds just on a pair of expert witnesses whose testimony at the trial featured rambling answers and misstated data.

These expert witnesses’ testimony was so bad the presiding judge singled them out in his decision, noting that they were “eviscerated” by ExxonMobil’s cross-examination.

There Are Better Ways to Address Climate Change

If Hawaii and other states and municipalities are serious about addressing climate change, their leaders should focus on commonsense solutions and innovation, and not wasting time and money on flawed climate litigation that won’t accomplish anything.

Local residents have already proven they have the ingenuity to achieve these kinds of results. When severe flooding destroyed an access road to Polihale State Park on Kauai Island, the state said it didn’t have money for repairs and they anticipated it could take years to fix, threatening the livelihoods of business owners in the area.

Instead of waiting on the state, these residents took the problem into their own hands got the job done themselves in only a week.

CNN reports:

“So [Ivan] Slack, other business owners and residents made the decision not to sit on their hands and wait for state money that many expected would never come.

Instead, they pulled together machinery and manpower and hit the ground running March 23. And after only eight days, all of the repairs were done, [Bruce] Pleas said. It was a shockingly quick fix to a problem that may have taken much longer if they waited for state money to funnel in.

‘We can wait around for the state or federal government to make this move, or we can go out and do our part,’ Slack said. ‘Just like everyone’s sitting around waiting for a stimulus check, we were waiting for this but decided we couldn’t wait anymore.’”

While this is just a single example, it shows there are better ways to deal with environmental problems that deliver real results for people rather than suing energy companies for lawfully creating the products that Hawaiians use every single day.

Read more at EID Climate