A key allegation in a climate lawsuit by the City of New York against Exxon and four major oil producers is identical to an allegation recently discredited by a judge in a similar case in California.
Attorneys for the cities of San Francisco and Oakland recently walked back the language of one of the key points in their legal complaint against the energy companies after the judge in the case said a "smoking gun" allegation fell apart once all of the context was considered.
The suits brought by the cities against the energy producers allege the companies knew as early as the mid 1990's that their primary products would cause environmental harm and that the companies then began to engage in a long-term disinformation campaign to suppress the science.
San Francisco and Oakland are co-plaintiffs in a case in federal court in California, while New York City is suing on its own in federal court in the Southern District of New York.
In an attempt to prove the first part of the theory—that the companies had privately concluded that climate change would happen and would be harmful—the cities pointed to an internal memo from a research group funded by the companies, the Global Climate Coalition (GCC).
The plaintiff's original complaint in California said:
"In February 1996, an internal GCC presentation stated that a doubling of carbon dioxide levels over pre-industrial concentrations would occur by 2100" and cause "an average rate of warming [that] would probably be greater than any seen in the past 10,000 years." The presentation noted "potentially irreversible" impacts that could include "significant loss of life."
Judge William Alsup, presiding over the California case, chided the plaintiffs, noting that the GCC presentation was not the GCC's own conclusion, but a reference to a study conducted by the United Nations Intergovernmental Panel on Climate Change.
"And I said, 'Okay, that's going to be a big thing. I want to see [the GCC presentation],'" Alsup said. "Well it turned out it wasn't quite that. What it was was a slide show that somebody had gone to the IPCC and was reporting on what the IPCC had reported, and that was it. Nothing more."
"It's hard to say [Exxon and the other companies] were secretly aware" of impending environmental harm, at least from this particular memo cited by the cities in the complaint, Alsup concluded.
Because all of the cities are using the same attorney, the wording of the legal complaints are identical in many parts, and the exact same allegation remains in the suit being heard in New York.
Attorneys for the plaintiffs in the New York case did not respond to a request for comment.
Tristan Brown, a professor at the State University of New York who specializes in energy law and policy, says what transpired in the California courtroom does not necessarily mean that the same argument in the New York case will become problematic.
"We're talking about two, lower level federal courts," Brown said. "It's not unheard of for two different district courts to come to different judgments on similar lawsuits, and then that is something that has to be resolved at the appellate level."
The legal and public relations battles over what the energy companies "knew" has become an important campaign to environmental groups, especially because it has sometimes been compared to cigarette companies not warning consumers about the dangers of tobacco use despite knowing from their own studies that smoking was unhealthy.
The hashtag #ExxonKnew was even used to protest the nomination of Rex Tillerson, formerly the CEO of Exxon, to serve as President Trump's first secretary of state in early 2017. Tillerson faced questions about the controversy during his Senate confirmation hearings.
Brown says a major development in the California case will likely arrive later this month when both sides in the case have to supply briefs in response to an order from Judge Alsup asking for answers to four questions. The last of those questions asks:
"If plaintiffs' theory is correct, why wouldn't everyone involved in supplying carbon-based fuels (or in otherwise increasing carbon dioxide, e.g., deforestation) be liable upon a showing that they questioned the science of global warming or sponsored research intending to question it?"
"Here in the north east we have a lot of logging to produce pellets that are ultimately combusted to produce heat," Brown said. "If those pellets are produced in a less than sustainable manner, those are going to be converted into greenhouse gas emissions as well.
"So what the judge asked was, 'OK, let's say that we do move forward and this becomes precedent, does that mean that every other entity out there that produces an energy source converted into greenhouse gas emissions, and at some point questioned the prevailing climate science regarding climate change, does that mean that they are also liable just like this suit is claiming these other companies are?'"