In the past few years, a growing number of lawsuits have transformed the vague concept of climate liability into a burgeoning legal trend, and today we launch the Climate Docket, a site dedicated to bringing you all the news of those lawsuits. As a non-profit news organization, we’ll bring you coverage of the suits as well as related political and legislative issues.

These lawsuits have the potential to change how the country tackles climate change: instead of an intractable dilemma involving partisan legislation, regulations and the Environmental Protection Agency, it frames the issue as a matter of simple liability. The fossil fuel industry is the overwhelming driver of global warming—and research has shown the industry has known this for more than 40 years and worked to obscure this fact to the public—the plaintiff communities believe it should help pay for the very real damage it causes.

Since 2017, more than a dozen of these climate lawsuits have been filed by municipalities and one state (Rhode Island, so far) against the fossil fuel industry to hold companies accountable for their role in climate change and its costly impacts.

These communities have begun to succeed in steering cases to state courts, the venue they believe give them the best chance for success. Last week, the latest of those jurisdictional victories came when the Ninth Circuit Court of Appeals agreed that a group of lawsuits filed by California communities should be heard in the state courts where they were filed.

Rhode Island, a group of Colorado communities and Baltimore have also convinced federal judges their liability suits belong in state courts.

The lawsuits have sparked furious pushback from the industry and its allies, including trade groups and many Republican state attorneys general. They argue that courts should have no role in tackling climate change, that it should be left to the legislative and executive branches of government. This argument has been successful in the past, particularly in federal court, but the legal tide appears to be shifting.

The fossil fuel industry is also trying to shield itself from facing liability in other ways, including lobbying for liability waivers from the federal and state governments. Such a provision was initially included in a well-publicized carbon tax proposal, the Baker-Schultz plan, that the industry threw its support behind. Oil giants and other high-emitting companies have proposed that their support for the modest legislative proposals being put forth to tackle carbon emissions should shield them from lawsuits.

These are the issues that Climate Docket will cover, without editorializing or advocating. We will have no opinion pieces, just news stories with information from both sides of the issue.

The editorial team will be spearheaded by journalist Karen Savage, who has been covering the issue since the launch of our predecessor site, Climate Liability News, in 2017, and has recently been contributing to Drilled News.

By Dana Drugmand

ExxonMobil has dismissed a shareholder proposal calling for the company to disclose how it plans to align its business with Paris Agreement climate targets, calling it “materially false and misleading.” Other companies with significant stakes in fossil fuels are also resisting similar requests from shareholders to take responsibility for their contributions to climate change.  

The shareholder proposals are a way for investors to push companies to address climate change risks. But oil and gas majors like Exxon and Chevron have been largely unreceptive to them, refusing to include them in the materials that shareholders will consider and vote on at the companies’ annual meetings. The proposals ask the companies to issue a report on reducing their contribution to climate change and how they might align their investments and business activities with the Paris Agreement goal of limiting warming to well below 2 degrees Celsius. 

The Securities and Exchange Commission has previously allowed Exxon and Chevron to block these proposals on alignment with the Paris Agreement. The companies recently filed responses with the SEC saying they plan to once again dismiss the proposals. 

[Read more…]

By Karen Savage

Story updated, Jan. 24—A press association’s decision to honor Chevron lead attorney Ted Boutrous with a Freedom of the Press Award has struck a nerve with some working to hold oil companies accountable for climate change and other damage to the environment.  

The Reporters Committee for Freedom of the Press (RCFP) is honoring Boutrous for his work representing reporters and media companies in First Amendment cases, according to an announcement posted on the RCFP website. 

Not mentioned in the announcement is work by Boutrous and his firm, Gibson, Dunn & Crutcher, to defend Chevron from climate liability suits and from other environmental litigation, including suits related to contamination in the Amazon. Boutrous has been the lead voice defending the fossil fuel industry in several lawsuits brought by communities seeking compensation for climate change-related damages.

Nor is it mentioned both Boutrous and his firm, Gibson, Dunn & Crutcher, have been major donors to the RCFP.

Others honored by RCFP this year include Julie K. Brown, an investigative journalist for The Miami Herald, Amal Clooney, co-founder and president of the Clooney Foundation for Justice, and Jane Mayer, staff writer and chief Washington correspondent for The New Yorker.

Not everyone sees Boutrous in the same category as Brown, Clooney and Mayer.

“Boutrous is the lead attorney in defending Big Oil against these corporate frauds and their liability sins and he’s not just one of many men, he’s the lead guy in,” said Robert Brulle, a Drexel University environmental sociologist and visiting professor of environment and society at Brown University.

More than a dozen municipalities across the country have filed climate liability suits against Chevron and other fossil fuel companies, alleging they knowingly sold and promoted products that damaged the climate and engaged in a sophisticated campaign of deception to downplay the risk and discredit the science.

With Boutrous steering its defense, Chevron has claimed that “the ‘wrongful’ conduct alleged is constitutionally protected speech immunized by the First Amendment.” Recently released emails between attorneys with Boutrous’ firm and the Department of Justice (DOJ) regarding the federal government’s support for oil company defendants has raised questions about Chevron’s close relationship to the Trump administration, as reported by InsideClimate News.

Indeed, Boutrous’ work can be seen in two very different lights.

First Amendment Defender

On one hand, Boutrous has worked to defend media organizations and reporters in a wide variety of First Amendment issues, including representing CNN journalists Jim Acosta and Brian Karem when the White House attempted to restrict their access. He has represented the RCFP in an effort to unseal records related to Robert Mueller’s probe of potential collusion by Trump in Russia’s election interference. He has also said he will defend anyone President Trump sues for speaking freely.

“We are proud to recognize Mr. Boutrous for his work representing journalists and media organizations in important First Amendment matters,” Bruce Brown, RCFP executive director said in a statement.

This isn’t the first time Boutrous has been honored for his First Amendment work.

He was honored with a distinguished leadership award by PEN America last year, as well as the Hugh M. Hefner Foundation First Amendment award for his work representing reporters and news organizations. In December, he was named “Litigator of the Year, Grand Prize winner” by The American Lawyer Magazine for his freedom of the press work and for his work on behalf of Chevron and other companies.

The International Women’s Media Foundation (IWMF) awarded him with a Leadership Award in 2015 for his work representing reporters and news organizations. At the time, Boutrous and his wife Helen—along with Chevron and Gibson, Dunn & Crutcher—were major donors to IWMF. Boutrous, who is currently on the IWMF advisory board, has also served on its board of directors and as co-chair.

Boutrous is also a member of the business advisory council for ProPublica, a nonprofit journalism organization that does extensive investigatory work.

“I have been representing journalists and news organizations and defending freedom of the press my entire career,” Boutrous said in an email. “The First Amendment faces significant threats right now and we all need to fight hard to maintain a strong, and independent press, which is exactly what I have been doing in case after case. Protecting freedom of the press is vital to protecting democracy and the rule of law.”

“Chevron, like my other clients, strongly supports the critically important work done by journalists and news organizations.  Any suggestion to the contrary is inaccurate and misleading.”

Defending Chevron

But critics like Brulle say Boutrous’ work for Chevron far outweighs his other First Amendment work.

His firm, Gibson, Dunn & Crutcher, for years has defended Chevron, perhaps most notably, in its efforts to avoid responsibility for contamination of a Rhode Island-sized swath of the Amazon rainforest in Ecuador. The contamination was the fault of Texaco, which Chevron acquired after the fact. Chevron didn’t deny the contamination, but maintained it was cleaned up by Texaco and has said even if it wasn’t, it is not their responsibility.

“We’re going to fight this until hell freezes over and then we’ll fight it out on the ice,” a Chevron spokesperson said in 2009. 

An Ecuadorian court thought otherwise and in 2011 ordered Chevron to pay $19 billion to Ecuadorian residents, including five Amazonian tribes, a figure that was later reduced to $9.5 billion by an appellate court.

Following through with its vow to fight, Chevron pushed back, appealing the verdict and a U.S. courts eventually blocked the judgment from being enforced in the U.S.. The plaintiffs and their attorneys say they still intend to enforce the judgement in other countries. 

Chevron also filed civil Racketeer Influenced and Corrupt Organizations (RICO) Act charges against attorney Steven Donziger and other plaintiff advocates. It alleged that Donziger, who for nearly three decades has represented the 30,000 people who say they have been harmed by the pollution, and his 47 Amazonian plaintiffs fraudulently obtained the judgment. 

A U.S. District Court judge agreed, ruling for Chevron in 2014. 

Donziger and the plaintiffs have consistently denied that allegation and have filed an ethics complaint with the United States Department of Justice (DOJ). 

“As I and others have made clear to the U.S. Department of Justice, there is in our view credible evidence that Boutrous and his team at Gibson Dunn manufactured evidence to try to help Chevron evade a valid pollution judgment owed to the people of Ecuador,” Donziger said. 

“Boutrous in my opinion is a key mastermind of probably the greatest SLAPP harassment case in history designed to silence lawyers and Indigenous peoples trying to hold his client Chevron accountable for extensive pollution. I cannot imagine anyone less deserving of a First Amendment award than Ted Boutrous.”

When New York prosecutors refused to prosecute Donziger on criminal contempt charges, the judge appointed private counsel to lead the prosecution. Donziger has been on house arrest in his New York apartment since last year and is fighting disbarment. He could also be ordered to pay attorneys’ fees to Chevron.

“They infamously issued massive and widespread subpoenas designed to intimidate anyone who was involved in the Chevron case years ago when they first filed their RICO case—journalists, lawyers, shareholder activists, human rights lawyers, environmental activists, everyone,” said Paul Paz y Miño, associate director of Amazon Watch, an organization that works to protect the rainforest and its people.

After decades of litigation, the Ecuadorian plaintiffs say they are suffering from unremediated contamination.

Paz y Miño said over the years Chevron, through its attorneys and public relations efforts, has worked to sway public opinion.

“Boutrous’ firm is one of those chiefly responsible for not only suppressing, but intimidating a wide range of people who have been trying to serve their free speech rights related to this case,” Paz y Miño said.

Chevron was a funder of PBS NewsHour with Jim Lehrer and in 2009 hired a former journalist to discredit reporting on Amazon pollution by the television news magazine 60 Minutes.  

Chevron complained to the Columbia Journalism Review that the company was treated unfairly by 60 Minutes, in part because an expert featured in the piece later recanted, saying he was pressured by Donziger to make certain statements against Chevron. The episode is no longer available on the 60 Minutes website.

When Rolling Stone published a report depicting Chevron in an unflattering light, a critique appeared on the conservative Media Research Center’s NewsBusters, a website “dedicated to exposing & combating liberal media bias” that has received funding from fossil fuel companies. Newsbusters was also highly critical of a story published about Chevron by award-winning journalist William Langewiesche in Vanity Fair.

Pulitzer Prize-winning political cartoonist Mark Fiore, who created satirical videos about the RICO charges, was named in a court briefing in which Chevron alleged the defendants “unleashed a barrage of near-daily press releases, letters to government officials and shareholders, web videos, and cartoons in an effort to extort a payoff from Chevron.”

“For me, it’s totally a free speech issue,” Fiore told Mint Press shortly after the 2014 court filing. He said that with the exception of Judge Lewis Kaplan, who ruled in Chevron’s favor in the RICO case, most U.S. judges would agree.

“In this country we are fortunate to be able to say just about anything we want to say when it comes to criticizing one of the top five companies in the world,” Fiore said. 

“I dive into the aggressive legal tactics of Chevron in the cartoon, and what Chevron is doing just reinforces the point of the cartoon beautifully,” Fiore told AlterNet.

While there’s no evidence directly connecting Boutrous to the pushback—and to be sure, the issues are complicated and each side has accused the other of ethics violations—he has written extensively about the case and his close ties to the media have led some to question the extent of his influence over the media. 

“Congrats! But Ted Boutrous? The David Hardy of this generation?” tweeted Benjamin Franta, referring to legendary tobacco attorney David R. Hardy. Franta is an advanced legal scholar at Stanford University whose research focuses on the history of the fossil fuel industry.

Brulle said he questions whether media outlets represented by Boutrous will be able to report critically on Chevron, one of his biggest corporate clients. 

Brulle also said Boutrous shouldn’t be honored for protecting the First Amendment. 

“We can make all kinds of legal and moral arguments, but I would say that the practical implications of what he’s doing is he’s aiding and abetting in the continued delay of taking meaningful climate action,” he said.