The States sued Big Tobacco and won. Can they beat Big Oil now?

State attorneys general across the country, including here in Massachusetts, are suing fossil fuel companies over climate change. Late last month, the state’s highest court denied ExxonMobil’s request to dismiss a lawsuit filed by Attorney General Maura Healey. And yes, you have already seen this film.

There are convincing evidence, in the public eye for several years now, that the fossil fuel industry has used the same playbook as the tobacco industry to spread misinformation, sow doubt and deflect responsibility for the dangers of its products. When their own research revealed the harm they were inflicting, both industries responded with a strategy of denial and deception.

The States took Big Tobacco to court and they won. The 1998 Master Settlement Agreement imposed strict restrictions on how tobacco companies can promote cigarettes and forced tobacco companies to pay billions of dollars in damages to states every year, as long as they did business in the United States

The tobacco agreement was the culmination of almost 50 years of legal challenges.

What could a deal between Big Oil and the states look like? And what effect would that have on our transition to cleaner energy sources and the course of the climate crisis?

[R]Attacks on the fossil fuel industry could accelerate the energy transition and help states become more resilient to climate change.

Court rulings in the 1990s did not eliminate cigarettes, but adult smoking rates has decreased significantly in the first two decades of this century. The exact portion of the decline attributable to court rulings against Big Tobacco is undetermined, but is plausibly significant. Industry settlement funded national anti-tobacco programs. It has also necessitated price increases that have made smoking less accessible to vulnerable populations, especially young people.

Similarly, court rulings alone will not be enough to end the climate crisis, but there are several ways that rulings against the fossil fuel industry could accelerate the energy transition and help states become more resilient in the face of climate change. to the climate.

Cash, of course, is always useful – and welcome. All states will feel the effect of global warming in one way or another and they will have to spend large sums to adapt. When tobacco colonies were distributed in the late 1990s, all 50 states, the District of Columbia and five territories lined up to get their share of the pot.

During 2019 Massachusetts v. Exxon In a climate case, the state asked the court to compel ExxonMobil to pay damages — likely billions of dollars — related to violations of state consumer protection laws and efforts to mislead the public In error. But beyond the monetary compensation, an AG Healey victory would only amount to an injunction against ExxonMobil greenwashing and misleading marketing.

Local governments in California are pursuing a more ambitious lawsuit. They are suing fossil fuel companies for the cost of physical damage from climate change, including sea level rise.

An even more ambitious model is a case of 2021 in the Netherlands. A successful environmental group sued Shell, and the court determined that the company must reduce its carbon emissions on an accelerated schedule. Dutch law is not US law – and Shell will appeal – but this decision stands out because the court dictated that a big company must take action to alleviate the global climate crisis. It’s analogous to a court ordering a tobacco company to reduce carcinogens in cigarettes – a decision that has never been made.

A constant drip of negative publicity damages the industry’s reputation and limits its ability to lead the conversation around the energy transition.

The many states with cases currently before the courts against Big Oil – including Massachusetts, Rhode Island, Vermont, Connecticut, Maryland, Coloradoand New York to name a few – probably won’t be able to deal such a heavy blow as in the Dutch decision. But even modest success in these cases could, overall, create headwinds for the fossil fuel giants and undermine their financial stability.

Being forced to pay billions of dollars in damages year after year could squeeze profits and make investors uncomfortable. It could become more difficult to raise the capital needed to sustain growth; a downward spiral into bankruptcy or consolidation could ensue.

And even if the states lose, media coverage of a long and nasty legal battle would amplify the narrative that Exxon and others had long known that burning fossil fuels would have catastrophic effects and that the industry tried to smash it. to hide. A constant drip of negative publicity damages the industry’s reputation and limits its ability to lead the conversation around the energy transition.

Like the fossil fuel divestment movement, the legal movement against big oil is helping to undermine social license engage in environmentally destructive business practices. According Daniel Farberprofessor of law at the University of California at Berkeley, which party will emerge victorious in these cases is secondary: “The real stakes of the litigation may therefore rest not so much on the results, but rather on the facts brought to light during the process. . .”

Can a deluge of court cases make fossil fuels socially and politically unacceptable? The history of tobacco litigation supports the idea that previously uncontested products can become stigmatized and, to some extent, marginalized. Nevertheless, more than two decades after the framework settlement agreement, the tobacco industry is still very profitableand dozens of thousands smokers still die of lung cancer each year in this country.

Let’s hope for a more decisive victory when the current wave of climate litigation is over.

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