By Karen Savage
A model bill written by the American Legislative Exchange Council (ALEC), ostensibly in response to the COVID-19 crisis, could have big implications for climate liability litigation.
The group, whose membership includes several oil majors as well as trade associations, lobbying groups and PR firms associated with the fossil fuel industry, produced the model legislation for state governments. It doesn’t specifically mention the ongoing pandemic, but it limits civil liability for corporations and their employees after a declared disaster or public emergency, provided the company “complied with or made a good faith effort” to comply with federal, state or local regulations.
As currently written, the model Liability Protection for Employers in a Declared Disaster or Public Emergency Act would not apply retroactively, but if passed by state legislators, could prohibit the filing of future climate-related litigation in municipalities that declare climate emergencies.
At least 98 U.S. municipalities have declared climate emergencies, including several that have already filed climate liability lawsuits against fossil fuel companies attempting to hold them accountable for their role in climate change.
“It’s possible that was designed to use this crisis in order to thwart future lawsuits about the devastating climate changes that are underway or other liability in in the midst of other crises that may be caused by those very businesses and their decisions,” said Lisa Graves, founder and executive director of True North Research, a policy research group.
ALEC, which has been called a “corporate bill mill,” writes and shares model bills, or policy, with state legislators, who are encouraged to copy and paste wording into bills they sponsor. Once bills are introduced, ALEC representatives help state lawmakers with background research and work to strategize ways to get the proposed legislation passed into state law.
Oil majors Chevron, Marathon, and Koch Industries—which have all been named in climate-related litigation—are current ALEC members, as are several railroads, public relations firms, trade associations, lobbying groups and others associated with the fossil fuel industry.
Koch Industries, which was named in Minnesota’s climate fraud lawsuit, is an ALEC mainstay.
“Koch Industries have given ALEC an untold sum of money, certainly more than $2 million over time,” said Graves, who has investigated ALEC. “We’ll never know how much Koch Industries has actually given to ALEC since 1993 because it’s not required to be disclosed, but we know that Koch Industries and or the Koch family fortune has bailed ALEC out, including giving it a loan of nearly a half a million dollars when it was on the ropes.”
Other ALEC members include conservative state legislators, right-leaning philanthropies and wealthy donors who work alongside corporate representatives to draft and share model legislation aimed at state lawmakers.
ALEC has lost more than 100 member companies over its stand on controversial issues. Graves and others exposed the group’s role in crafting Florida’s “Stand Your Ground” legislation, which played a role in the acquittal of George Zimmerman in the 2012 murder of Trayvon Martin, a 17-year-old unarmed Black teenager.
Oil majors are among those who have left the group over its public opposition to climate action. ConocoPhillips left in 2012 and British Petroleum and Shell let their membership expire in 2015. ExxonMobil parted ways in 2018 after a clash with the Heartland Institute and some of ALEC’s fringe groups, which were trying to get the federal government to back down on its view that climate change is a risk to human health.
Graves said although Exxon’s departure was something to praise, it “does not undo the damage that Exxon has done through ALEC for decades in terms of advancing climate change denial and sowing doubt about climate change denial and pushing measures that would thwart measures to redress or mitigate the climate changes that are underway.”
And it’s still possible for fossil fuel companies to have a hand in crafting ALEC’s model bills even after they’ve publicly pulled out.
“Sometimes corporations will leave ALEC because they’re public-facing corporations and they’re embarrassed by ALEC’s positions once the American public learns of them,” Graves said. “Then the trade groups that they fund remain in ALEC—and that’s certainly the case with some of these fossil fuel companies.”
Disaster Bill Was Fast-Tracked
What would become ALEC’s model Liability Protection for Employers in a Declared Disaster or Public Emergency Act was first proposed on a task force call in May, according to reporting by the Intercept.
Mark Behrens, a partner at Shook, Hardy & Bacon and chair of ALEC’s civil justice task force, led the call and advocated for the passage of uniform state bills with “strong protections against frivolous lawsuits.”
Shook, Hardy & Bacon, which has also represented the U.S. Chamber of Commerce, gained notoriety for defending the tobacco industry against claims it deliberately deceived the public about the deadly health effects of smoking.
Since then, the firm has transitioned to defending fossil fuel companies in climate change-related litigation. Partner Tristan Duncan served as lead counsel for Peabody Energy in the coal giant’s litigation attacking the Clean Power Plan, the Obama Administration’s cornerstone climate program.
Phil Goldberg, another Shook, Hardy & Bacon partner, is currently special counsel for the Manufacturers’ Accountability Project, which was launched in 2017 by the National Association of Manufacturers (NAM) to push back against climate change-related lawsuits.
Shook, Hardy & Bacon was a registered lobbyist for the U.S. Chamber of Commerce’s Institute for Legal Reform in 2018, advocating for tort reform.
“The fact is that Mark Behrens and Victor Schwartz and Shook, Hardy, and Chamber and NAM are on the wrong side of history, and they’ve done everything they can to try to thwart the ability of people to hold these corporations accountable,” Graves added.
Following the May call, the civil justice task force convened an emergency meeting to finalize the suggested legislation, according to David Armiak, research director for the Center for Media and Democracy.
“The fact that they met in an emergency meeting and passed it shows that this was a very, very important issue to them,” Armiak said. “By the time the [annual] meeting happened, it was already finalized.”
ALEC did not respond to a request for comment.
“It’s funny how these groups work, because they claim to be for localized democracy and individual freedoms, but they’re really about solidifying power,” Armiak said.
In Armiak’s view, ALEC exploited the COVID-19 crisis to draft a model bill to protect corporate profits and potentially take away local municipalities’ ability to hold fossil fuel companies accountable for climate change.
Graves said the model legislation, if enacted, could serve as a get-out-of-jail-free card for corporations.
“That’s completely, completely unjustified and contrary to sound public policy in terms of the way liability is supposed to work in America, which is to provide incentives for businesses to do the right thing versus blank checks basically for them to do the wrong thing and to put their profits ahead of the well-being of the American people.”