King County Climate Lawsuit Undermines Other Litigants

Last week King County, Washington, became the latest municipality to sue the oil and gas industry in an effort to extract monetary damages for climate change. Like San Francisco, Oakland, and New York City, King County hired the Seattle-based plaintiffs’ firm Hagens Berman to represent it.

Curiously, even after facing heavy skepticism and criticism of its past lawsuits, Hagens Berman doubled down on some of its weakest arguments, and in doing so, may have thrown its fellow plaintiffs under the bus.

King County’s lawsuit criticizes fossil fuel companies for acknowledging the uncertainty inherent in attempting to predict the future. Here is one example from the King County complaint:

“Until approximately early 2017, Exxon’s website continued to emphasize the ‘uncertainty’ of global warming science and impacts: ‘current scientific understanding provides limited guidance on the likelihood, magnitude, or time frame’ of events like temperature extremes and sea level rise. Exxon’s insistence on crystal-ball certainty was clear misdirection, since Exxon knew that the fundamentals of climate science were well settled and showed global warming to present a clear and present danger.” (emphasis added)

It’s an accusation opponents of the oil and gas industry have made before, but it now serves to cast doubt on the lawsuits brought by King County’s fellow climate plaintiffs in California, who recently released a report that praises their own efforts to emphasize the uncertainty of climate projections.

It could also create additional legal headaches for King County and other plaintiffs.

In January, one of the defendants of these climate lawsuits filed a petition in a Texas District Court suggesting that the California municipalities’ claims of climate damages were either exaggerated in their lawsuits or downplayed in their municipal bond disclosures. The U.S. Securities and Exchange Commission (SEC) was later asked by the Competitive Enterprise Institute and National Association of Manufacturers to investigate the municipalities’ bond disclosures for possible securities fraud.

Seeking to clear their name, five of the municipalities (all represented by Sher Edling LLP) hired a former SEC official to review their bond disclosures. That former SEC official’s conclusion emphasized that the effects of climate change were too far away to have any noteworthy impact on the municipalities, and praised them for emphasizing the uncertainty of climate change modeling. Discussing the bonds of one of the plaintiffs, the report states:

“Furthermore, the disclosure documents for the bonds San Mateo County issued in 2014 and 2016 included general disclosures regarding potential risks from sea level rise and included appropriate cautionary language about the uncertainty of whether or when flooding from sea level rise might occur and of the County’s inability to predict whether such future events would have a material adverse effect on the financial condition and business operations of the County or on the local economy.” (emphasis added)

As Energy In Depth noted at the time, the former SEC official’s report was almost certain to cause headaches for the plaintiffs’ lawsuits, whose very premise relies on the idea that these municipalities have already been harmed by climate change and that the energy industry was inappropriately acknowledging the same uncertainty noted by the municipalities.

So when ExxonMobil acknowledges the uncertainty of climate projections, it’s “clear misdirection.” But when San Mateo, Santa Cruz and Marin Counties and the Cities of Imperial Beach and Santa Cruz do the same, they were acting appropriately? That is a textbook example of hypocrisy.

Further ignoring the former SEC official’s report and throwing caution to the wind, King County’s lawsuit begins with:

“Global warming is here and it is harming King County now as King County is already experiencing the impacts of a changing climate: warming temperatures, acidifying marine waters, rising seas, increased flooding risk, decreasing mountain snowpack, and less water in the summer.” (emphasis added)

In its first line, King County’s complaint contradicts the report paid for by the California municipalities, which stated: “in the case of sea-level rise and certain other climate impacts, municipal entities generally will not be greatly affected for decades…”

It is also clear that Hagens Berman has not updated the language in its lawsuits to reflect recent events. In fact, much of King County’s complaint is copied over from the San Francisco and Oakland complaints, with minimal alteration.

The copy of the complaint available on King County’s website is even titled “Template that creates a custom pleading,” providing some of the strongest evidence yet that Hagens Berman is shopping these lawsuits as an off-the-shelf deliverable. The firm stands to make tens of billions of dollars in contingency fees should any of the plaintiffs find success in the courtroom.

But the firm’s inattention to detail and its history of bringing “baseless” cases that give a “new meaning to ‘frivolous’” – as one judge put it – may ultimately prove a legal headache for the firm and the cities and counties it represents.

Read more at EID Climate