by Lucas Bergkamp
At a Workshop in 2012, a group of scientists, lawyers and advocacy groups discussed what lessons could be learned from the tobacco litigation for launching successful climate change litigation against corporations.
They called this concept “establishing accountability for climate change damages.” Needless to say, the targets they have in mind are fossil fuel companies. A report on this Workshop [1] provides interesting insights into the thinking of the climate action movement.
The report provides a disturbing account of how this movement seeks to manipulate public opinion with a “narrative that creates public outrage” and to deploy “multiple, complementary legal strategies” to solicit assistance from the courts in their efforts to hold companies accountable for a global, public policy issue.
These activist plans are all the more problematic, as they have been devised under the guise of science. As such, this movement results in further politicization of science, thus undermining the public interest in objective, non-partisan science. It uses the courts as an ‘end-run’ around democracy.
Be that as it may, there is also a series of legal issues associated with the comparison between tobacco litigation and climate change, which are not discussed in the Workshop report. Once these differences are exposed, it becomes clear why the report is silent on them.
What does the tobacco litigation have to do with climate change? Is fossil fuel in any way like tobacco? Are the theories employed in the tobacco litigation relevant to climate change? How does the damage caused by smoking compare to any damage that may be caused by climate change?
Below, I explore the differences between the two. Some of these differences are closely related, but I thought it might help the understanding to spell them out nevertheless.
Relevance of corporate scientific investigations: In theory, an individual tobacco company could reliably investigate the effects of smoking on human health. On the other hand, there is very little an individual fossil fuel company could do to investigate and unravel a tremendously complex global problem like climate change and any possible damage that may associated with it; this kind of science has a very strong ‘public good’ character,[2] and an individual company could contribute very little of relevance that is not already known to the scientific community. There is a huge body of publically-funded climate science to which privately-funded science has made an insignificant contribution.
The nature of the harm: The harms associated with smoking are individualized, concentrated on individual victims, and relatively short-term; they are not hypothetical, but actual adverse health effects. The potential harms that may be associated with climate change, however, are as of yet non-existent, generalized (indeed, global), diffuse, and long term (50 to 100 years). If any harms materialize, they are likely to first affect natural resources, not human beings. More importantly, any climate damage would be indivisible and be caused by the cumulative impact of carbon dioxide emissions worldwide.
Statistical dependence of risks: While the risk of an individual person suffering harm from smoking is statistically independent of another person suffering such harm, the risks of climate-related damage are statistically dependent.[3] This has implications for the role any individual company can play in prevention, and, thus, the role of liability, as discussed further below.
Foreseeability of potential harm: At some point in time, the risks associated with smoking became reasonably foreseeable. The risks of climate change, however, are still unforeseeable, not only because the science and causal links are uncertain and involve future harms, but also because any effects depend critically on the actions of numerous others that are entirely beyond the control of any one corporation, indeed, any one nation.[4]
Failure to warn about addiction and manipulation: The tobacco litigation was based on the theory that tobacco companies knew about the risk of smoking and the addictive effect of nicotine, but failed to provide adequate warnings, denied the evidence, and manipulated nicotine levels to promote addiction.[5] Nobody could seriously argue that fossil fuels are somehow addictive or that that fuel composition has been manipulated in some way relevant to addiction or climate change damage; the chief causal agent in the cause of climate-related damage is an ubiquitous, natural gas called carbon dioxide, also known as the ‘gas of life.’[6] Where a claim of ‘addiction’ is made, it is phrased as a public, societal problem,[7] not an individual or company-specific issue.
Failure to warn about other risks: Under the failure to warn theory, tobacco companies were deemed to be under an obligation to inform their customers because the risks associated with smoking were not only known, but they were also a direct, unmediated consequence of smoking; in other words, the risks were not deemed to be dependent on other, extraneous factors. In the case of climate change, however, any hazards are uncertain, remote, and dependent on the actions of numerous other players, including other companies and foreign governments. It is hard to see how any fossil fuel company could be under any sort of obligation to warn against a risk that is only remotely and to a negligible degree related to its products. Moreover, any such risk is already commonly known (see further below).
The risk of misinformation: In the case of tobacco, one might be able to argue that misinformation causes people to be potentially misled and make decisions they would not have made had they been properly informed. In the case of climate change, as noted below, the public opinion has been dominated for a long time by the IPCC science and doom scenarios of potential catastrophes. Any information that fossil fuel might have provided would not contribute anything to this narrative and thus not be able to affect public risk perception.
Causal link between information and damage: In the case of tobacco, the argument can be made that smokers, had they been properly informed, would have ceased smoking. With respect to fossil fuels, on the other hand, no credible claim can be made that consumers would have ceased using fossil fuels had they received information about climate-related hazards from a fuel company. For one, research has demonstrated that people’s belief in climate doom scenarios is a function of their cultural predispositions, not their level of understanding of the science or information on hazards.[8] In addition, the abundance of exaggerated ‘climate alarmist’ information from sources such as government agencies and NGOs[9] does not suggest that any objective information that could possibly be provided by companies could change anything, except in the direction of less alarmism and more balance.[10] Thus, any corporate climate-related information that might be deemed required would make it even less likely that the public would either change its habits or demand (or at least support) more stringent regulation.
Ability to prevent harm: Arguably, tobacco companies might in some cases have prevented harm by providing full information on the risks associated with smoking. Fossil fuel companies, however, cannot provide any information that would help the public in avoiding possible harms; the public has been extensively informed about the risks of climate change through the public media, NGO campaigns, and government-supported awareness-raising, and these campaigns have gone beyond the science to exaggerate the risks. Any information that a court might find a fossil fuel company was required to provide could only create more balance, making it less, not more, likely that consumption would be reduced or more stringent regulations be put into place. The only theory that could possibly result in liability would have to hinge on a claim that, given what was known about climate change, fossil fuel companies should have ceased selling their products. But that, of course, would have imposed such enormous costs on society that any climate-related benefits would be wiped out many times over.
In short, a careful comparison of the nature of the risks, the related potential harms, and the possibilities for prevention by corporations demonstrates that the theories developed by plaintiff lawyers in the tobacco litigation are irrelevant to possible climate change litigation against corporations. This explains also why the climate action movement does not engage in any such analysis. Instead, it focuses on arousing “public outrage” to “mobilize the public.” And it does not attempt to hide the political objective of its “narrative,” i.e. “to illuminate the collusion and fraudulent activities that prevent us from building the sustainable future we need and our children deserve.”[11] Reality shows a different picture, however: they have been prevented from imposing their view of ‘climate justice’ on all of us, not due to any fraudulent activities, but because politicians have rejected some of their more extreme demands.[12]
Even if they are successful in mobilizing the public, their propaganda will likely not persuade courts of law to ignore their legal mandate and distort the law to establish a new liability program draining resources from corporations. As one participant at the 2012 Workshop commented, “[e]ven if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties.”[13] One might begin to wonder who is being injured, who is engaging in collusion, and who distorts legal and political processes.
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Endnotes:
[1] http://www.climateaccountability.org/pdf/Climate%20Accountability%20Rpt…. See also the blog post by Shub Nigguraths https://nigguraths.wordpress.com/2015/11/02/rico-teering/
[2] R.G. Holcombe, A Theory of the Theory of Public Goods, Review of Austrian Economics, 10, no. 1, 1997, pp. 1-22.
[3] L. Bergkamp, Environmental Risk Spreading and Insurance, Review of European Community & International Environmental Law 2003, pp. 269-283.
[4] L. Bergkamp, Adjudicating scientific disputes in climate science: the limits of judicial competence and the risks of taking sides, ENV. LIABILITY, 3, 2015, pp. 80-102.
[5] Cf. A. Schwartz, Views of Addiction and the Duty to Warn, Virginia Law Review, Vol. 75, 1989, pp. 509-560.
[6] For a discussion of the benefits of carbon dioxide, see United States Senate Environment and Public Works Committee Minority Report, Critical Thinking on Climate Change: Empirical Evidence to Consider Before Taking Regulatory Action and Implementing Economic Policies, Washington DC, September 4, 2014.
[7] ‘Our addiction to fossil fuel is taking us on the road to nowhere,’ http://www.greenpeace.org/international/en/news/Blogs/makingwaves/fossil-fuel-addiction/blog/52081/
[8] D.M. Kahan et al., Cultural cognition of scientific consensus, 14(2) Journal of Risk Research, 2014, pp. 147–74 DOI:10.1080/13669877.2010.511246. D. Kahan, Why we are poles apart on climate change, Nature, 488, 2012, pp. 255-256. D M Kahan and others, The tragedy of the risk-perception commons: culture conflict, rationality conflict, and climate change, SSRN 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871503.
[9] B. Lomborg, The Alarming Thing About Climate Alarmism: Exaggerated, worst-case claims result in bad policy and they ignore a wealth of encouraging data, WSJ, Feb. 1, 2015, http://www.wsj.com/articles/bjorn-lomborg-the-alarming-thing-about-climate-alarmism-1422832462
[10] L. Bergkamp, Informed Consent to Climate Policy (2015, forthcoming).
[11] Union of Concerned Scientists and Climate Accountability Institute, Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control. Summary of the Workshop on Climate Accountability, Public Opinion, and Legal Strategies, Scripps Institution of Oceanography, La Jolla, CA, June 14−15, 2012, pp. 28-29.
[12] L. Bergkamp, J.C. Hanekamp, Climate change litigation against states: the perils of court-made climate policies, European Energy and Environmental Law Review, 24/5, 2015, pp. 102–114.
[13] Union of Concerned Scientists and Climate Accountability Institute, Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control. Summary of the Workshop on Climate Accountability, Public Opinion, and Legal Strategies, Scripps Institution of Oceanography, La Jolla, CA, June 14−15, 2012, p. 13.
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