Makah Indian Tribe v. Exxon / Shoalwater Indian Tribe v. Exxon

No rest for the weary. Back on December 21st, I thought the little-publicized news of the fisherman’s trade association plaintiffs’ self-withdrawal of their PCFFA v Chevron global warming lawsuit was a Christmas gift to the skeptic side of the climate issue. Maybe the plaintiffs fully comprehended the futility of their lawsuit while also finding out how their choice of lawsuit handlers, the San Francisco Sher Edling law firm, was perhaps not qualified to handle the case. However, the situation is instead one step forward and two steps back when, it comes to being done with this climate lawfare litigation war. It turns out Sher Edling had filed a pair of brand-new lawsuits on Dec 20 for two Native American communities in Washington state, Makah Tribe v. Exxon and Shoalwater Tribe v. Exxon.

The news of this latest pair of filings was also oddly little-publicized in minor news outlets, compared to widespread news of the prior-most-recent one, the ‘watershed momentCalifornia v Exxon sensation ( ahem – keep an eye on the apparent grand unifying theme). But these two lawsuits might be also be considered a ‘Christmas gift’ that’ll keep on giving, not only to the defendants’ law firms, but also to objective journalists and potentially GOP House investigators.

So, let’s run through the top template items which earns Sher Edling its “boilerplate copy” label, and then let’s look at the bizarre new odd angle that popped up in this pair. I’ll just use the Makah filing since both are nearly completely identical with the exception of the plaintiff name difference (no need to trust me on this – open each PDF file in separate page tabs, pick any page in the pair to compare to the other same page number and toggle between the two blink comparator style up until pages 93 of their 101 page totals. Enough of a text difference happens that the paragraphs don’t line up exactly on the subsequent pages).

✓ “Reposition global warming as theory (not fact)” memos — Check, PDF file page 42. That’s the worthless ‘leaked industry memo directive’ that’ll be one of the main reasons the defendants’ lawyers can point to for dismissing these cases due to lack of evidence proving industry-led disinformation campaigns ever existed. The ‘directive’ was part of a memo set sent to the 1991 pilot project “Information Council for the Environment” (ICE) public relations campaign run by the Western Fuels Association; the proposal, with its alternative spell-outs of “ICE” was unsolicited and never implemented, including rejecting the proposal’s illogical targeting idea concerning a ridiculously narrow set of the population.

✓ Information Council for the Environment advertorials — Check, PDF file page 46. Only one of those on that page was actually published anywhere, the “Most Serious Problem” one. Read the actual text accompanying the image (zoom in here to see what Sher Edling has always cropped out of it), and it becomes obvious that no outright disinformation appears within it. The other two – “Doomsday Canceled” / “Chicken Little” were never published anywhere, therefore their text is worthless to prove the public was misinformed by it. Worse for Sher Edling, it is provable that inconvenient truths about these two have been cropped out — the “ICE” name spell-outs that were unsolicited by Western Fuels. You won’t see that in huge magnifications of Sher Edling’s pages, nor at the now-missing-in-action collection at Greenpeace. Where can you zoom way in on those never-published ads? At my own downloaded copy of Greenpeace’s PDF file, they look like this. A law firm cannot tell a jury that defendants misled the public with advertorials the public never saw. This multi-time repeated blunder by Sher Edling is one more reason to dismiss all their lawsuits.

✓ 1998 American Petroleum Institute’s “victory will be achieved ‘when average citizens understand (recognize) uncertainties in climate science” memos — Check, PDF file page 44. That’s the other worthless ‘leaked industry memo directive’ that’ll be a reason the defendants’ lawyers can point to for dismissing these cases – same reason as above. Sher Edling would have a jury believe that the fossil fuel knew full well all the way back to the 1970s that burning coal and oil causes global warming and that they could chalk up a victory if they could trick the public into believing the science was uncertain. From all the uncertainty back then about whether the planet was warming or cooling, that API memo line is no smoking gun indictment, it and the others in that memo could be mirror flipped into a set that the enviro-activists would happily endorse. It would be a victory for science across the board if the public and policymakers had all available information in order to make fully informed decisions, instead of the just getting the biased half put out by outlets such as the PBS NewsHour.

✓ Accusation that skeptic climate scientist Dr Wei-hock “Willie Soon” failed to disclose his ‘fossil fuel industry funding’ — Check, PDF file page 57 onto page 58. These lawsuits should also be thrown out over this accusation. He could not have disclosed his “Exxon funding” source because the funding was never directly to him. Exxon donated money to the organization he worked for, the Harvard-Smithsonian Center for Astrophysics (H-SCfA) which took 40% off the top for overhead expenses, and H-SCfA never directed Dr Soon what research conclusions he should have to continue receiving the H-SCfA underwriting for his research. Worse for Sher Edling, their source for the accusation, a 2015 Smithsonian press release page is worthless because it merely stated that Smithsonian was only beginning its investigation of Dr Soon’s funding. In 2020, as Dr Soon himself describes, Harvard-Smithsonian took that press release offline because the result of their 5 year investigation was that he committed no wrongdoings.

✓ Reliance on Roland C “Kert” Davies and his Climate Files websiteCheck. In this pair of lawsuits, Sher Edling cites Climate Files 17 times. Just like all their others, Sher Edling inexplicably chose not to cite him one more time for the “victory will be achieved” memo set, where their cited weblink for it goes to the innocuous-looking “Document Cloud” file. Four small changes to that weblink reveal he’s the one who uploaded it to Document Cloud when he worked at Greenpeace. At one time, Sher Edling also credited Davies’ site for supplying them with that “Chicken Little” advertorial. The one that’s worthless because it was never published anywhere. The same advertorial that Naomi Oreskes trumpeted in her UK Guardian 2021 article along with the unsolicited spelled-out ICE name. The same Oreskes who is on retainer with Sher Edling.

✓ Inclusion of the Joseph Carlson memo — Check, PDF file page 40 with its innocuous “document cloud” citation. Make that the 19th time Sher Edling could have directly cited Kert Davies in this latest pair of lawsuits. But this time, is Sher Edling plagiarizing Milberg Coleman’s Puerto Rico v Exxon filing which was seemingly plagiarizing Sher Edling’s boilerplate lawsuits? Albeit one small increment less?

✓ Inclusion of the 1977 “James Black Exxon Report” — Check, PDF file page 23 onto page 24 … except with a new wrinkle, the fat red line at the bottom of the Black graph. At his Sept 2020 WUWT analysis of that Black Report within the Sher Edling Charleston v Brabham Oil filing, David Middleton overlaid his own red line of temperature readings from a data set which illustrated how Exxon did not know with any certainty that burning their products would result in runaway warming. But in this latest pair of filings, Sher Edling has laid in their own much fatter red line sourced from Geoffrey Supran et al.that ‘climate disinformation expert’ Geoffrey Supran. Who’s the “et al.” in Supran’s Science magazine paper? Oh, yeh.

No matter where you go in the ‘industry execs colluding with skeptic climate scientists in disinformation campaigns’ accusation, there you are. They’re just one big happy tiny little family. It seems to be the ‘grand unifying theme’ in these ExxonKnew lawsuits.

Meanwhile, what’s missing in this latest pair of Sher Edling lawsuits? They left out the ‘Oreskes Richard Lawson Memo’ bit that’s been in many of the prior filings. San Mateo v Chevron, Platkin v Exxon & PCFFA v Chevron, Honolulu …. who knows, maybe Clima-Change™ causes ExxonKnew lawsuits to start losing deadweight having really dicey associated problems that would be ammo handed on a silver platter to the defendant law firm attorneys.

That ammo.

Which brings us right back to what I noted at the top of this post, the bizarre new odd angle that popped up Makah / Shoalwater pair.

They made their absolute-best-we-got, ‘smoking gun evidence’ phrase into a non-word-searchable snippet graphic. It’s a first-time-ever maneuver in their string of 18 filings for that phrase, along with their second-best-we-got leaked industry memos ‘evidence,’ the 1998 API “victory will be achieved” memos. Those two memo phrases are the first words I search for in any given accusation hurled by prominent people accusing the fossil fuel industry of spreading disinformation.

Upon seeing one of the news announcements to be found the day after the twin filings, and after seeing that the weblinks went straight to Sher Edling, it was my guess that I would find both phrases within a half second of entering them into the PDF file search windows. No dice, which for a few minutes seemed very odd. Right afterward, however, I found them because I knew what other words and citation sources were connected with them.

What’s up with that? The filings are supposed to look more dramatic with those scraggy-looking images lifted out of Greenpeace’s horrid old degraded photocopies? Or has the Sher Edling law firm realized they may have jumped the shark by repeating those worthless (worthless!) memo phrases, and maybe it’s a good idea to perhaps thwart them popping up in word-search results where you might be able to show in embarrassing animated ways where and who repeats them?

Doesn’t matter which answer it is, it wouldn’t be good. As I’ve already shown with that law firm, they aren’t especially bright when it comes to drawing attention to details that could sink every one of their ExxonKnew lawsuits.

The entertaining news on Jan 10th was that a Delaware Superior Court judge ruled that Sher Edling’s Delaware v. BP claims against its fossil fuel company defendants for causing damages from essentially global (meaning not local) warming are preempted by the Federal Clean Air Act, thus they are beyond the limits of state statute. The ruling means Sher Edling now needs to do a little more fancy dancing to secure a win. Problem is, this still only involves jurisdictional legal technicalities, when the entire case should be thrown out because “ye olde” industry memos within it are totally without merit when it comes to proving any fossil fuel company ran disinformation campaigns employing skeptic climate scientists, and because their slur against Dr Willie Soon may fit the definition of libel/slander.

The question beyond that is whether Sher Edling could be disbarred for seemingly uses a variety of ways to hide material which torpedoes their lawsuits.