By Dana Drugmand
The attorney general of Minnesota, one of the states that took a lead role in holding the tobacco industry accountable for public health costs in the 1990s, said he is acutely aware of the potential of litigation to hold fossil fuel companies responsible for climate change.
Keith Ellison, elected as Minnesota’s AG last year after representing the state for 12 years in Congress, said during an event at the University of Minnesota Law School on Tuesday that he is “looking carefully” at the liability suit filed by Rhode Island against a group of fossil fuel companies as well as New York State’s climate fraud lawsuit against ExxonMobil that goes to trial next week.
“Attorneys general across the country are not sitting back and watching this happen,” he said.
The event Ellison headlined on Tuesday, titled “The Legal and Scientific Case for Recovering Climate Change Damages in Minnesota From Fossil Fuel Companies,” also featured remarks from a lead lawyer in the Minnesota tobacco litigation and the attorney who is spearheading many of the current climate liability lawsuits against fossil fuel companies.
Ellison described Minnesota’s game-changing role in tobacco liability litigation in the 90s. As one of the first states to file suit against the tobacco companies, the State of Minnesota v. Philip Morris became the only state case to make it to trial. It resulted in a landmark settlement—$6 billion over the first 25 years and $200 million every year after—and the discovery process revealed 35 million pages of documents showing the industry’s decades-long campaign of deception about smoking’s ties to lung cancer and other illnesses.
“Attorneys in Minnesota created an environment where not only did we get compensation for victims, but we also got to the truth,” Ellison said.
Several of the current liability lawsuits targeting the fossil fuel industry could soon be entering the discovery phase, with recent court rulings refusing to pause the litigation in cases brought by Baltimore, Rhode Island, and several Colorado communities. New York has already undergone discovery in its case against ExxonMobil and Massachusetts is also actively investigating the company for possible consumer and investor fraud.
The similarities between the fossil fuel companies’ tactics and those of the tobacco industry are striking, said Roberta Walburn, an attorney with Ciresi Conlin who was one of the lawyers leading Minnesota’s groundbreaking tobacco case.
“I think we’re seeing in the climate change litigation the fossil fuel players using the same playbook as the tobacco companies did,” Walburn said “They’re using some of the same players, hiring a payroll of researchers to create doubt about the science, using trade groups to do the same thing.”
Perhaps the biggest parallel, she said, is the “necessity to turn to the courts after every other institution that could have addressed the problem has failed.” The public health crisis of smoking, like the climate crisis, was exacerbated by an industry campaign of deception and denial about the science of smoking-related illness.
Vic Sher, partner at the firm Sher Edling, who is helping represent plaintiffs in several climate suits, emphasized the similar, deliberate campaign by fossil fuel companies to downplay the consequences of fossil fuels on climate and create doubt around the science.
“The origin story of this climate crisis today is rooted in the deception campaign,” he said.
Research in recent years that ties historical greenhouse gas emissions to specific companies, and further links percentages of observed climate impacts to major carbon producers (the “Carbon Majors”) also bolsters the case for climate liability, said several experts on the Minnesota panel.
“This type of research is providing a framework for creating the connection between emissions and impacts, not just at the global scale but at the regional and local scale,” said Rachel Licker, senior climate scientist at the Union of Concerned Scientists.
The climate liability cases raise the question of who should pay for the very real impacts at the local and state level, in Minnesota communities and across the country
“The state has already spent millions of dollars adapting to the impacts of climate change, and will need to spend at least tens of millions more to adapt in the future,” said J. Drake Hamilton, science policy director at Fresh Energy, a Minnesota nonprofit advocating for a clean energy transition.
It remains to be seen whether Minnesota will look to the courts to recover climate costs, as Rhode Island has done. But given the state’s success with tobacco litigation, and the recognition that political solutions have largely failed, it may be on the horizon.
“I think there’s an important role that attorneys general can play,” Ellison said.