State takes Big Oil to court over climate change

High-ranking state officials gathered last week to announce a new state lawsuit against major gas and oil companies – an attempt to drive home the impacts of climate change being felt in the Garden State. “Ten years ago, Superstorm Sandy made landfall, leaving behind a trail of destruction the likes of which the state has never seen,” Attorney General Matt Platkin told reporters at the Oct. 18 news conference. Platkin was joined by Shawn LaTourette, the state’s commissioner of Environmental Protection, and Cari Fais, acting director of the New Jersey Division of Consumer Affairs, to announce the lawsuit at Liberty State Park, which was heavily flooded during Sandy.

“Where we’re standing now here in Liberty State Park, this terminal was under 5 feet of water and the roof was badly damaged,” said Platkin. “Superstorm Sandy may have originated in the Caribbean Sea, but its strength is owed to something far larger: climate change.”

LaTourette noted the devastation caused in the Garden State by Sandy as well as Ida in such a short span of time.

“So, within 10 years, New Jersey experienced two of the most devastating, life-altering storms in our history,” said LaTourette. “And that’s in no small part because of our state’s, our nation’s, and, indeed, the world’s addiction to fossil fuels.”

LaTourette pointed out that in addition to those devastating storms, the state just endured one of the hottest summers on record and is still under a drought watch. He grimly predicted that the situation is unlikely to improve any time soon. “These conditions will sadly only worsen in the decades ahead, leaving us scrambling to prepare for a parade of harmful climate changes,” said LaTourette.

“We now know that climate change is a manmade phenomenon caused by the burning of fossil fuels,” said Platkin. “Fossil fuels that are put into the market by oil and gas companies without any warning of their dangers. Had we known this earlier, had we been advised and warned of the dangers of these products, we could have taken actions that would have mitigated or even eliminated many of the risks of climate change, including the prevalence of dangerous storms like Sandy.”

The lawsuit alleges that defendants Exxon Mobil Corp., Shell Oil Co., Chevron Corp., BP, ConocoPhillips, and the American Petroleum Institute knowingly made false claims to deceive the public about the existence of climate change while misleading about the dangers their products had on the environment.

Platkin said the suit was filed under the state’s Consumer Fraud Act, as well as the common law related to failure to warn, negligence, trespass, nuisance and impact impairing the state’s public trust. “This lawsuit will seek administrative penalties, compensatory damages, natural resource damages, and punitive damages,” said Platkin. “We’ll ask the court to order the defendants to stop their lying and to pay for the costs of their conduct in New Jersey.”

The state alleges that the defendants have known for decades that the use of fossil fuels is a major cause of climate change, but instead of warning the public, they launched public-relations campaigns to sow doubts about the existence, causes and effects of climate change with the goal of confusing the public, delaying the transition of a lower carbon economy and future, increasing their own profits, and further deepening dependence on their products. “They’ve worked very hard to keep our residents in the dark,” Platkin alleged. “They knew that fossil fuels were causing global warming, melting polar ice caps and triggering a sea level rise that threatened people living in coastal communities.”

“They knew it at a time when we could have acted together as a people to avoid some of the damage that we’ve already experienced, and to thwart the damage that is coming,” LaTourette alleged. “But, instead of sharing that knowledge, these companies undermined the science. They lied to us. It was intentional, wasn’t some error of omission, because the science was inconvenient for them. Not for us, not for the people, but for them.”

“These defendants have long known the truth that fossil fuels caused climate change, but they withheld that truth, and, instead, put out misleading information about the safety of their products,” Fais alleged. “They deceived the public into believing that climate change either wasn’t real or wasn’t being caused by fossil fuels. And with those deceptions, they lulled the public into a false sense of security.”

Fais noted a systematic and long-running disinformation campaign, alleging it prevented urgently needed action.

“Now we’re all paying the price with rising sea levels and extreme weather,” Fais explained. “The property damage has been tremendous. And the loss of life is a tragedy.”

And she pointed out the alleged deception went further than just misrepresenting the truth of climate change, accusing the companies of falsely suggesting that they were stewards of the environment.

“Through deceptive marketing, they greenwashed their actions and portrayed themselves as responsible corporate citizens searching for environmental solutions,” said Fais. “It is long overdue that these defendants stop feeding the public bad information and start paying for the damages caused by their false statements.”

The 200-page complaint lays out the state’s theory and claims in detail. “All Defendants’ actions in concealing the dangers of, promoting false and misleading information about, and engaging in massive campaigns to promote increasing use of their fossil fuel products have successfully delayed transitioning to a lower carbon footprint, deepened consumers’ dependence on fossil fuel products, and contributed substantially to the buildup of CO2 in the atmosphere that drives global warming and its physical, environmental, and socioeconomic consequences, including those affecting the State,” the suit alleges.

Several attorneys general in other states have brought similar legal claims against the fossil fuel industry, including Rhode Island, Delaware, Minnesota, Massachusetts, Connecticut and Vermont as well as the District of Columbia. More than a dozen cities and counties have also filed such lawsuits, including the City of Hoboken.

So far, the only case that reached trial was dismissed in New York state court in 2019 with the judge determining there was not sufficient evidence to prove the defendants’ intentional misleading on climate change risks. That judge did not absolve ExxonMobil from contributing to the climate crisis, but deemed it a securities fraud case rather than a climate change matter.

Most of the other cases are in different phases of the litigation process with the current battles mainly centering on jurisdiction as the defendants try to get the cases kicked from state court to federal court. In September 2020, Hoboken filed its suit in state court against 13 entities, seeking restitution for storm damages the city alleges are the result of climate change as well as the costs associated with climate-resiliency projects the vulnerable city has undertaken to better protect itself from future storms.

This case is about justice for every New Jerseyan who’s had to line the curb with their waterlogged belongings after their basement flooded, time and time again.” – Cari Fais, acting director of the New Jersey Division of Consumer Affairs

“It’s about justice for those who now find themselves living in flood zones. This case is about getting justice for those who had to be rescued from rising floodwaters by first responders. And it’s about justice for those who were swept away before help could arrive,” Fais continued.

LaTourette said he does not believe that corporations are innately evil but stressed that accountability is needed to protect against self-interest or their own worst instincts. “So, today, we demand that accountability,” said LaTourette. “We demand that the oil majors answer for deceiving New Jerseyans, for making climate policy so hard to achieve through obfuscation and delay. We demand accountability because it’s just plain wrong to put profit over people and the planet that we share.”

Comparing it to fights against Big Tobacco and Big Pharma, especially the recent opioid lawsuits, Platkin acknowledged that it was going to be a long, tough endeavor. “We’re talking about suing some of the largest companies in the world. We don’t take enforcement actions lightly,” said Platkin. “We’ve given this the due consideration it deserves. I’m confident the complaint we’re filing today is one that is both timely and will deliver very meaningful results for the people of New Jersey, and frankly, the environment.”

Platkin said his office has a good track record of leading some of the largest, most complicated and complex litigations against some of the biggest players, and believes his staff is ready for this fight. “We’ve built a team that is committed to bringing these fights and ultimately, not just filing a complaint,” said Platkin. “It’s nice to file a complaint. But we are going to litigate this tooth-and-nail until a resolution is brought and restitution is returned to the state.”

Many of the defendants were quick to fire back. “Legal proceedings like this waste millions of dollars of taxpayer money and do nothing to advance meaningful actions that reduce the risks of climate change,” Casey Norton, corporate media relations manager, for ExxonMobil, told NJBIZ in a statement.

ExxonMobil will continue to invest in efforts to reduce greenhouse gas emissions while meeting society’s growing demand for energy.” – Casey Norton, corporate media relations manager, ExxonMobil

“The Shell Group’s position on climate change has been a matter of public record for decades. We agree that action is needed now on climate change, we fully support the need for society to transition to a lower-carbon future and we’re committed to play our part by addressing our own emissions and helping customers to reduce theirs,” Shell said. “Addressing a challenge as big as climate change requires a truly collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change, but that smart policy from government, supported by action from all business sectors, including ours, and from civil society, is the appropriate way to reach solutions and drive progress.”

“Today’s filing is a distraction from the serious problem of global climate change, not an attempt to find a real solution. Like the others in the series brought by the same private plaintiff lawyers, it is a special-interest lawsuit asking the Superior Court of New Jersey to punish a select group of energy companies for a problem that is the result of worldwide conduct stretching back to the beginning of the Industrial Revolution,” a Chevron spokesperson said. “These suits serve only to divert attention and resources away from the collaborative, international efforts that are critical to developing a meaningful solution to climate change. Chevron believes that the claims asserted are legally and factually meritless and will demonstrate that in court. In the meantime, Chevron will continue working with other stakeholders in the public and private sectors to craft real solutions to global climate change.”

“The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint,” an API spokesperson said in a statement. “Any suggestion to the contrary is false.”

ConocoPhillips told NJBIZ that company practice is to not comment on active litigation matters. BP did not respond to a request for comment.

In addition, while environmental groups, advocates and other stakeholders applauded the suit, it was blasted by the New Jersey Business & Industry Association and many Republicans.

“At a time when gas prices are once again on the rise and America’s energy security is of the utmost concern, it is unsettling that the state has decided to pursue this litigation. Energy is essential to our modern economy and our way of life. Reliable, affordable energy runs our factories, heats and cools our homes, and powers our transportation sector,” Ray Cantor, NJBIA’s deputy chief of government affairs officer, said in a statement. “Climate change is an important issue, but remedies require a unified national and international approach coupled with technological advancements from our business and manufacturing communities. This lawsuit improperly casts blame at a time when we should be focused on collaboration and will only harm New Jersey consumers in the long run.”

“The latest Murphy Administration lawsuit would only drive gas prices even higher for New Jersey families struggling with the worst inflation in more than four decades,” said state Sen. Jim Holzapfel, R-10th District, in a statement. “Instead of fighting to increase domestic oil production and lower costs for consumers, Gov. [Phil] Murphy continues to use taxpayer funds to pay for unnecessary lawsuits to advance his expensive progressive agenda.”

But Platkin said that an effort to force the defendants to pay for their conduct and betrayals is overdue. “We know that storms like Superstorm Sandy pose an ever-present danger. And we know that the impacts of climate change are felt by communities across our state, from our cities to our suburbs, from our wetlands to our rural communities,” said Platkin. “The defendants in today’s action also knew of these risks, and they knew of them literally decades ago. And they could have acted to prevent them. Instead, they chose their profits over our safety.”

“We will not stand by as the defendants enrich themselves at the expense of the public,” said Fais. “It is the mission of the Division of Consumer Affairs to protect the people of New Jersey and hold accountable those who violate the Consumer Fraud Act. And that’s exactly what this lawsuit will do.”

“It was wrong to mislead us; wrong to undermine climate science; wrong to put profit over people and the planet that we share,” said LaTourette. “It is time New Jersey demands accountability.”