Climate Change: Massachusetts Finally Moves on Climate Change

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

As California burns, Massachusetts separately  moves on climate change.

Last Thursday, following a three-year investigation, Massachusetts attorney general Maura Healey sued Exxon for climate liability fraud (see complaint here).

Massachusetts is the second state to file such a claim, and its lawsuit was filed during the same week that Exxon confronts fraud claims in another state trial, currently ongoing in New York (see Climate Change: New York AG Takes Exxon to Trial This Week; Massachusetts Poised to Follow).

As Climate Liability News reports in Massachusetts Becomes Second State to Sue Exxon for Climate Fraud:

“Exxon has known for decades about the catastrophic climate impacts of burning fossil fuels—its chief product,” Healey said. “Yet, to this day, Exxon continues to deceive Massachusetts consumers and investors about the dangerous climate harms caused by its oil and gasoline products and the significant risks of climate change—and efforts to address it—to Exxon’s business. We are suing to stop this illegal deception and penalize the company for its misconduct.”

The complaint, filed in Suffolk County Superior Court, follows a three-year investigation that Exxon has vigorously fought. The suit was filed just two days after the start of the trial in New York State’s similar lawsuit against the oil giant, which is being heard in New York Supreme Court. The New York attorney general’s office filed its lawsuit, which alleges only investor fraud in violation of the state’s anti-fraud law, the Martin Act, on this same date a year ago.

The Massachusetts complaint alleges Exxon repeatedly violated state laws and regulations regarding consumer and investor protections. The suit, while similar to New York’s case, has additional claims including the broader claim that Exxon misled investors about systemic financial risks relating to climate change.

“Exxon has not been honest with investors,” Healey said after the suit was filed. “Exxon knows that continued burning of fossil fuels presents a systemic risk to the global economy.”

In addition, the Massachusetts AG alleges that Exxon has engaged in a greenwashing marketing campaign, according to Inside Climate News, Massachusetts Sues Exxon Over Climate Change, Accusing the Oil Giant of Fraud, as well as castigates the company’s role in contributing to global warming:

The lawsuit further calls out Exxon over “hypocritically touting itself as an exemplary environmental corporate steward” when the company is among the largest corporate contributors to global warming.

“Collectively, as with its historic and ongoing deception campaigns about the science, the objective of ExxonMobil’s efforts is to preserve the company’s short-term profits in a carbon-dominated world economy no matter the dire long-term consequences for the company’s investors or for the consumers who buy its products,” the 211-page complaint states.

Impact of NY and Mass Lawsuits

The NY and Massachusetts lawsuits, taken together, serve as reminders that Trump’s pro-fossil fuel policy is not the only climate change game in town. State AGs wage formidable legal clout. These lawsuits are much more than token harassment of fossil fuel companies such as the instant target Exxon, and instead serve as an alternative form of regulation, as Legal Newline reports, While New York goes to trial, Massachusetts AG finally sues ExxonMobil over climate change statements

The lawsuits by Massachusetts and New York fit with a campaign by environmental groups and the Rockefeller Brothers Fund to use litigation as an alternative form of regulation against oil and gas producers. Former New York AG Eric Schneiderman consulted with activists before launching a highly publicized investigation of ExxonMobil in 2015.

Healey’s office has participated in NYU’s State Impact Center, an organization funded by billionaire Michael Bloomberg that places “fellows” in state AG offices to investigate environmental litigation like the ExxonMobil suits. ExxonMobil has criticized the practice as an unacceptable conflict of interest because the AGs only get the assistance of NYU attorneys if they pursue the litigation NYU supports.

Alas, I think the lawsuits, which by their nature, are retrospective in their outlook, fall far short of the extensive, prospective regulation that’s necessary to confront the climate change crisis. But the Trump administration has no interest in addressing that colossal problem, meaning that these state-level lawsuits loom larger than they should in the regulatory arsenal for confronting climate change.

Yet lest you think they are irrelevant in the face of that calamity, they’ve attracted the ire of climate change denialists, such as the following screed in the Boston Globe, The climate change shakedown (which should really be read in full, to be believed and be aware, this is the Globe, and not the Herald.):

Democratic politicians in Massachusetts and New York are not the only government entities seeking to punish Big Oil for the public problem of climate change. A number of cities and counties have also filed climate claims against energy companies.

The state and local suits are the by-product of a 2012 summit in La Jolla, Calif., where activists cooked up a scheme to regulate energy and generate cash windfalls through litigation. Put simply, the goal of the campaign, hatched in La Jolla, is to “establish in [the] public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm.”

Activists openly admit that the point of such climate lawsuits is to make the oil and gas industry “less competitive with wind, solar and other renewable energy sources and thus accelerat[e] the transition to a clean-energy economy.”

Thankfully, some judges still have some respect for the separation of powers. In 2018, a federal court in California threw out a lawsuit by the cities of San Francisco and Oakland that sought monetary damages from oil companies for the effects of climate change. Judge William Alsup acknowledged the scientific consensus that fossil fuels have “materially” accelerated climate change, but he held that the cities could not prove the companies created an unauthorized public nuisance.

“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal,” Alsup wrote, and it is the job of the legislative and executive branches of government — not the courts — to “balance the social utility against the gravity of the anticipated harm” of climate change.

A federal court in Manhattan likewise dismissed nuisance claims by New York City on the grounds that federal regulation of greenhouse gas emissions by the Clean Air Act preempts common-law nuisance claims. In other words, Congress is the appropriate place to set climate policy. Not the courts.

Sadly, these rulings haven’t stopped politicians in Rhode Island from pursuing frivolous public nuisance claims.

Nor have they discouraged the attorneys general of New York and Massachusetts from advancing intellectually dishonest new theories to legally harass and extort the energy companies.

These state cases should also fail. But that won’t stop hypocritical politicians, all of whom use gasoline to get them to their campaign fund-raisers, from continuing their coordinated campaign against the companies that power our world.

Any effort that can attract such hysteria from the denialist side of the climate change spectrum should be applauded.

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28 comments

  1. JohnnyGL

    https://wayland.wickedlocal.com/news/20190909/wayland-resident-gov-baker-merkel-and-weymouth-compressor-station

    Locally, I’m happy to learn that AG Healy is also opposed to the Enbridge gas pipeline to go through my old neighborhood, too.

    The gas isn’t even for MA residents….it’s for Enbridge to sell to the Germans. As usual, citizens are seen to be a nuisance or obstacle in the way of the big moneyed interests who have their priorities and keep plowing ahead.

    Reply
    1. Another Scott

      No, the gas is not for LNG exports. Some of the gas will likely be exported to Canada through existing pipelines, as well as the new one, but most will be used in New England, including Massachusetts. The facilities that import LNG in Massachusetts (Everett and Gloucester) have little, if any, liquefaction capabilities, certainly not enough to handle export shipments, even if they were permitted. And Canaport scrapped its plans to export LNG. It’s much cheaper and easier for Germans to buy LNG from the facilities in Maryland, Louisiana, and Texas.

      Reply
      1. rjs

        a lot of US gas is going to Canada….in Ohio, we have two new major natural gas pipelines (Rover and Nexus) crossing the state from the southeast to Michigan, then to the Dawn Hub in Ontario, a major storage depot across the river from Detroit…but Canada themselves are a major natural gas exporter, with US destinations all along the border..

        so why do we ship gas to Canada to have them ship it back to us? it’s pretty simple; every middleman along that circuitous route gets to step on the price and make a profit, and by the time it gets back to the Ohio consumer, its price is three times as much as it cost at the wellhead down the street…and Ohio PUCO has no control over prices Ohio utilities pay for imports..

        Reply
        1. drumlin woodchuckles

          If the individual residential retail-level end-users of Ohio could get their gas right from the “wellhead down the street” at a three times lower price than what they pay now, would they use three times more gas?

          It will feel harsh to hear, but the way to encourage conservation is to discourage excess use. And the way to discourage excess use is through punitive pricing. If the retail end-user price for gas in Ohio is anything like what it is for gas here in Michigan, it is still several times too low to encourage any meaningful conservation.

          Reply
          1. rjs

            you think the gas pipelines & producers are running this hustle to encourage conservation?

            price notwithstanding, it seems natural gas demand is fairly inelastic…one will not cook more food or heat one’s house more just because the price of natural gas went down…and the price would have to get awfully high to discourage home heating, hot water heating, and cooking..

            Reply
  2. John Wright

    One can wonder if this will eventually result in the application of a penalty tax on all hydrocarbon energy suppliers which could serve to decrease demand.

    per https://www.resilience.org/stories/2011-01-25/energy-hydrocarbons-north-america/

    “North America’s massive energy diet is largely made up of hydrocarbons—a full 83 percent comes from oil, gas, and coal, and if we include nuclear energy, 91 percent comes from nonrenewable fuel sources. In 2008, North America consumed 27 percent of the world’s oil production, 25 percent of natural gas production, and 18 percent of coal production. Most of the rest of our energy consumption was derived from nuclear power and large hydropower, with renewable energy sources such as biomass, wind, photovoltaics, and geothermal aking up less than 2 percent of our total. Moreover, despite a several-fold growth in non-hydropower renewable energy sources, nonrenewable sources are still forecast to supply 88 percent of our primary energy consumption by 2030”

    While Exxon will consume some hydrocarbon energy producing its products, USA consumers, not Exxon, supply the demand and burn the resultant fuels to add to the CO2 burden.

    Imagine all suppliers putting warning labels on gas pumps “Science has determined that using this product contributes to climate change, therefore, your consumption of this product damages the environment.

    As the Pogo comic strip stated “we have met the enemy and he is us”

    https://i1.wp.com/real-leaders.com/wp-content/uploads/2019/04/pogo.jpg?zoom=2.625&resize=371%2C247&ssl=1

    Reply
    1. Grumpy Engineer

      You said, “While Exxon will consume some hydrocarbon energy producing its products, USA consumers, not Exxon, supply the demand and burn the resultant fuels to add to the CO2 burden.

      Aye. This is a critical point. Even if Massachusetts were to sue Exxon into oblivion, the demand for hydrocarbon-based fuels would remain. People would still need gasoline for their cars, diesel fuel for their trucks, and fuel oil for their furnaces. And if Exxon doesn’t supply it, somebody else will. Like the Canadians, with their oil tar sands. Or the Saudis, who’d use the revenue to continue funding their wars.

      I’m not sure I see how burning foreign oil would be better than burning Exxon oil.

      Reply
      1. John Wright

        I’m somewhat surprised that Exxon simply didn’t add “for climate change of the environment, use responsibly” disclaimers to all their gasoline/diesel pumps a long while ago.

        This would be similar to the “drink responsibly” notices on alcohol commercials.

        It might have avoided future legal action against Exxon.

        I doubt that this would have affected the Exxon bottom line much as I believe USA fuel consumer behavior would have changed very little.

        Reply
        1. John Farnham

          Any such ‘disclaimer’ is in fact an admission of culpability for a matter which lacks conviction. It seems sloppy reasoning to propose such ( though there is a whirlwind of allegation that such is the case), when there can be no proof.

          Reply
      1. Grumpy Engineer

        And not Ford, GM, Chrysler, or our various foreign suppliers for selling vehicles that require gasoline? Or Carrier, Trane, Lennox, or Rudd for selling furnaces that require fuel oil? Or Honda, John Deer, Toro, or Troy Bilt for selling landscaping equipment that requires gasoline? Or Cummins, Volvo, Paccar, or Navistar for selling engines that require diesel fuel?

        Our lives are full of devices that require fossil fuels to operate. Why is nobody suing the companies that sell this stuff?

        Reply
        1. UserFriendly

          Last I checked Ford and GM didn’t have a crack team of scientists predicting global warming from the continued use of their product and then bury the results and fund a disinformation campaign so that they could continue to profit while inevitably killing millions.

          Reply
          1. Grumpy Engineer

            They didn’t need a crack team of climate scientists. The IPCC’s first assessment report was available in 1990. Nearly 30 years ago. And yet Ford and GM are pushing SUVs and large pickups as hard as ever.

            Reply
    2. PlutoniumKun

      This really comes down to the heroin dealers defence ‘I’m just the supplier, if I didn’t do it, someone else would’.

      It really doesn’t fly as an argument. Oil dealers are not passive suppliers to a market, they have at least partly created the market. The reason US consumers use far more oil per person than, say, an oil rich country such as Norway, is that the latter has put in place policies to minimise energy use and ensure a wider range of alternatives. There is a very long history of the US oil industry deliberately suppressing alternative energy sources and creating an oversized demand (by, for example, buying up and closing down public transport systems, and lobbying to keep loopholes open to ensure US cars are the most gas guzzling on the planet, and US houses are the leakiest and most poorly insulated.

      Reply
      1. John Farnham

        Norway has record access to hydroelectric power. Comparisons with less fortunate nations are inappropriate.

        Reply
        1. PlutoniumKun

          I was not referring to their electricity use, i was referring to their petroleum use policies, specifically very strict building regulations, investing in public transport and discouraging oversized vehicles through taxation.

          Reply
      2. Another Scott

        Except, it wasn’t Exxon that stopped the expansion of the Orange Line to Reading or prevented the MBTA from maintaining its tracks and equipment. I don’t think they’re responsible for the ubiquity of single family housing within 128 either. Even the more specific areas where they lobbied, such as the lack of increases to gas taxes, have one thing in common – the suburban voter. That is what drives Massachusetts politics. Don’t upset them, especially donors from the Western (wealthy) suburbs. Now that these voters, especially Democratic primary voters care about global warming, Healy’s going after Exxon, but in a way that absolves blame from individuals in Massachusetts.

        Reply
  3. Tom Pfotzer

    As the Pogo comic strip stated “we have met the enemy and he is us”

    Right On, John Wright!

    Will MA direct the proceeds of the lawsuit toward developing alternative solutions to fossil fuel use? MA has a strong tech sector and it used to be a great manufacturing state.

    Let’s see of the MA admin & legislature has much of a sense of the situation, the timing, and the ability to think and speak big ideas.

    Reply
    1. Tom Pfotzer

      It occurs to me that there’s a precedent for the concept of using fines/lawsuit proceeds to economically rehabilitate a region. The U.S. tobacco settlement proceeds were partially used to fund econ redevel for those farmers who used to grow tobacco down in N and S Carolina, Tennessee and Kentucky. I have visited regions where this happened, and note that a lot of those farmers were poor and often Afro-american.

      They used the tobacco suit settlement funds to some good effect, but they didn’t quite achieve “new industry” status. Just some of the cleverer farmers made good on their “second chance” windfall.

      On the other hand, Massachusetts might be able to achieve a new industry. There’s a lot of can-do progressive types living in the New England region. They do some impressive work on the homesteader / renewable energy / permaculture / organic farming fronts.

      Reply
  4. Jos Oskam

    The headline drew my attention: “Massachusetts Finally Moves on Climate Change”. I was impressed and hopeful. Until I read on.
    So, they’re gonna sue Exxon. Right. Armies of overpaid lawyers are going to battle it out over legal technicalities. That’s going to save the climate for sure!

    * Sigh *

    Reply
  5. Brooklin Bridge

    The ONLY good thing about our cat passing away a few years ago is that I no longer have a pressing need for either rag, the BG – utterly shameless, or the NYT, sneaky (knows better) AND shameless.

    If I were a cat litter box, I would cringe at what people lined me with these days.

    Reply
  6. Sancho Panza

    If you call me a denialist I’ll call you an alarmist. Alarmist. Name calling helps no one. Hopefully there’s still tolerance for research and debate on the other side of this issue.

    Reply
    1. John Farnham

      It’s worse than merely having ‘sides to an issue.’. We have claims that it is ‘settled science’ regarding computer speculations about potential scenarios which have not happened – and people are expected to take such idiocy seriously.

      Reply
    2. drumlin woodchuckles

      If you and John Farnham are correct, then you have a real contrarian investing opportunity awaiting you here.

      If you were to buy all the near-sea-level land you can afford while others are selling and leaving in fear of a rising ocean … and then the ocean fails to rise … you or your heirs will be positioned to make a lot of money when the runaways or their descendants decide to come back and live by the coast again.

      I am sure there are other versions of investing the same way.

      Reply

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