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Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 1 of 51
Nos. 18-15499, 18-15502, 18-15503, 18-16376
United States Court Of Appeals
FOR THE NINTH CIRCUIT
COUNTY OF SAN MATEO, No. 18-15499
Plaintiff-Appellee, No. 17-cv-4929-VC
v. N.D. Cal., San Francisco
CHEVRON CORPORATION, et al., Hon. Vince Chhabria
Defendants-Appellants
COUNTY OF IMPERIAL BEACH, No. 18-15502
Plaintiff-Appellee, No. 17-cv-4934-VC
v. N.D. Cal., San Francisco
CHEVRON CORPORATION, et al., Hon. Vince Chhabria
Defendants-Appellants
COUNTY OF MARIN, No. 18-15503
Plaintiff-Appellee, No. 17-cv-4935-VC
v. N.D. Cal., San Francisco
CHEVRON CORPORATION, et al., Hon. Vince Chhabria
Defendants-Appellants
COUNTY OF SANTA CRUZ, et al., No. 18-16376
Plaintiff-Appellee, Nos. 18-cv-00450-VC;
v. 18-cv-00458-VC;
CHEVRON CORPORATION, et al., 18-cv-00732-VC
Defendants-Appellants N.D. Cal., San Francisco
Hon. Vince Chhabria
BRIEF OF AMICI CURIAE ROBERT BRULE, CENTER FOR
CLIMATE INTEGRITY, JUSTIN FARRELL, BENJAMIN
FRANTA, STEPHAN LEWANDOWSKY, NAOMI ORESKES, and
GEOFFREY SUPRAN
IN SUPPORT OF APPELLEES AND AFFIRMANCE
DANIEL P. MENSHER 1201 THIRD AVENUE, SUITE 3200
ALISON S. GAFFNEY SEATTLE, WA 98101-3052
KELLER ROHRBACK L.L.P. Tel: (206) 623-1900
Counsel for Amici Curiae
Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 2 of 51
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................... 1
IDENTITY AND INTEREST OF AMICUS CURIAE ............................ 2
INTRODUCTION.................................................................................... 1
I. DEFENDANTS HAD ACTUAL KNOWLEDGE
OF THE RISKS ASSOCIATED WITH THEIR
FOSSIL FUEL PRODUCTS ................................................. 3
A. Defendants had early knowledge that fossil
fuel products were causing an increase in
atmospheric CO2 concentrations, and that
this increase could result in "catastrophic"
consequences. ............................................................... 3
B. Defendants conducted their own climate
science research that confirmed fossil fuels
were increasing atmospheric carbon dioxide
and affecting the climate. ............................................ 9
II. DEFENDANTS TOOK PROACTIVE STEPS TO
CONCEAL THEIR KNOWLEDGE AND
DISCREDIT CLIMATE SCIENCE..................................... 16
A. Defendants developed sophisticated
strategies to hide the risks of climate
change and create doubt about the scientific
consensus of global warming. .................................... 17
B. Defendants engaged in public
communications campaigns designed to
manufacture doubt and minimize the risks
of climate change........................................................ 22
C. Defendants funded organizations and
research to discredit the growing body of
publicly available climate science.............................. 30
i
Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 3 of 51
III. DEFENDANTS MOVED TO PROTECT THEIR
OWN ASSETS FROM CLIMATE IMPACTS
BASED ON THE SCIENCE THEY PUBLICLY
DISCREDITED ................................................................... 33
IV. CONCLUSION .................................................................... 36
ii
Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 4 of 51
TABLE OF AUTHORITIES
Page(s)
Cases
City of Modesto Redevelopment Agency v. Superior Court,
119 Cal. App. 4th 28 (2004) .................................................................. 1
City of Modesto v. Dow Chem. Co.,
19 Cal. App. 5th 130 (2018) .................................................................. 2
County of Santa Clara v. Atlantic Richfield Co.,
137 Cal. App. 4th 292 (2006) ................................................................ 2
People v. ConAgra Grocery Prods. Co.,
17 Cal. App. 5th 51 (2017) .................................................................... 2
Stevens v. Parke, Davis & Co.,
9 Cal. 3d 51 (1973) ................................................................................ 2
Other Authorities
2007 Corporate Citizenship Report, ExxonMobil (2007) ........................ 32
Amy Lieberman and Susanne Rust, Big Oil braced for global
warming while it fought regulations, Los Angeles Times
(Dec. 31, 2015)......................................................................... 34, 35, 36
Amy Westervelt, Drilled: A True Crime Podcast about
Climate Change, Episode 1, The Bell Labs of Energy (Nov.
14, 2018) .......................................................................................... 8, 10
AQ-9 Task Force Meeting Minutes, American Petroleum
Institute (Mar. 18, 1980) .............................................................. 11, 12
Benjamin Franta, Early oil industry knowledge of CO2 and
global warming, 8 Nature Climate Change 1024 (Nov. 19,
2018)...................................................................................................... 4
Benjamin Franta, Shell and Exxon's secret 1980s climate
change warnings, The Guardian (Sept. 19, 2018).............................. 16
iii
Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 5 of 51
Dick Russell and Robert F. Kennedy, Jr., Horsemen of the
Apocalypse: The Men Who Are Destroying the Planet (Hot
Books 2017) ......................................................................................... 30
Edward Teller, Energy patterns of the future, 38 Energy and
Man: A Symposium 53 (1960)............................................................... 5
Elmer Robinson and R.C. Robbins, Sources, Abundance, and
Fate of Gaseous Atmospheric Pollutants, Stanford
Research Institute (1968) ..................................................................... 6
Environmental Research, A Status Report, American
Petroleum Institute (Jan. 1972) ........................................................... 7
Evolution of Mobil's Public Affairs Programs 1970-81, Mobil ............... 24
Exxon and Mobil Ads, Polluter Watch.................................................... 24
ExxonMobil Foundation & Corporate Giving to Climate
Change Denier & Obstructionist Organizations, UCS
(2017)............................................................................................. 31, 33
Frank Ikard, Meeting the challenges of 1966, Proceedings of
the American Petroleum Institute (1965) ........................................ 5, 6
Geoffrey Supran and Naomi Oreskes, Assessing
ExxonMobil's climate change communications (1977
2014), 12(8) Environmental Research Letters 084019
(Aug. 23, 2017) ................................................................................ 9, 25
Global Climate Coalition: An Overview, Global Climate
Coalition (Nov. 1996) .......................................................................... 20
Global Climate Science Communications Team Action Plan,
American Petroleum Institute (Apr. 3, 1998) ........................ 27, 28, 29
Global Mean CO2 Mixing Ratios (ppm): Observations, NASA
Goddard Institute for Space Studies .................................................... 7
iv
Case: 18-15499, 01/29/2019, ID: 11171856, DktEntry: 95, Page 6 of 51
Global warming: who's right? Facts about a debate that's
turned up more questions than answers, Exxon
Corporation (1996) .............................................................................. 23
Greenhouse Effect: Shell Anticipates A Sea Change, New
York Times (Dec. 20, 1989)................................................................. 34
H.R. Brannon, A.C. Daughtry, D. Perry, W.W. Whitaker, and
M. Williams, Radiocarbon evidence on the dilution of
atmospheric and oceanic carbon by carbon from fossil
fuels, 38 Trans. Am. Geophys. Union 643 (Oct. 1957) ......................... 4
James Osborne, INTERVIEW: Former Exxon scientist on oil
giant's 1970s climate change research, Dallas News (Oct.
2015)...................................................................................................... 8
John Walsh, Exxon Builds on Basic Research, 225 Science
1001 (1984).......................................................................................... 10
Kathy Mulvey and Seth Shulman, The Climate Deception
Dossiers: Internal Fossil Fuel Industry Memos Reveal
Decades of Corporate Disinformation, Union of Concerned
Scientists (July 2015) ............................................................. 26, 28, 31
Lee R. Raymond, Energy Key to growth and a better
environment for Asia-Pacific nations, World Petroleum
Congress (Oct. 13, 1997) ..................................................................... 24
Letter from Dr. Patrick Michaels, Information Council on
the Environment (May 15, 1991)........................................................ 26
Memo from A.M. Natkin to H.N. Weinberg re CRL/CO2
Greenhouse Program, Exxon Corporation (June 18, 1982) ......... 17, 18
Memo from Gregory J. Dana to AIAM Technical Committee
re Global Climate Coalition (GCC) Primer on Climate
Change Science Final Draft, Association of
International Automobile Manufacturers (Jan. 18, 1996)................. 21
v
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Memo from Henry Shaw to Dr. E.E. David, Jr. re "CO2
Position Statement", Exxon Inter-Office Correspondence
(May 15, 1981) .................................................................................... 12
Memo from J.F. Black to F.G. Turpin re The Greenhouse
Effect, Exxon Research and Engineering Company (June
6, 1978) .............................................................................................. 7, 8
Memo from M.B. Glaser to Exxon Management re CO2
"Greenhouse" Effect, Exxon Research and Engineering
Company (Nov. 12, 1982).............................................................. 10, 14
Memo from R. W. Cohen to A.M. Natkin, Exxon Research
and Engineering Company (Sept. 2, 1982) ........................................ 13
Memo from R. W. Cohen to A.M. Natkin, Exxon Research
and Engineering Company (Sept. 2, 1982) ........................................ 13
Memo from R.W. Cohen to W. Glass re possible
"catastrophic" effect of CO2, Exxon Corporation (Aug. 18,
1981).............................................................................................. 12, 13
Memo from W.L. Ferrall to R.L. Hirsch re "Controlling
Atmospheric CO2", Exxon Research and Engineering
Company (Oct. 16, 1979)..................................................................... 11
Mobil, CNN and the value of instant replay, New York Times
(Oct. 16, 1997) ..................................................................................... 24
Mobil, Op-Ed Impact Study: A Comparative Analysis of
Energy Viewpoints in The Op-Ed Advertisements and The
New York Times Editorials, 1970-1980.............................................. 25
P. Langcake, The Enhanced Greenhouse Effect: A Review of
the Scientific Aspects, Shell Internationale Petroleum
Maatschappij B.V., The Hague (Dec. 1994) ....................................... 19
R.P.W.M Jacobs, M.H. Griffiths, P.E. Bright, J.B. Homer,
J.A.C.M. van Oudenhoven, and J. Waller, The Greenhouse
Effect, Shell Internationale Petroleum Maatschappij B.V.,
The Hague (May 1988) ....................................................................... 15
vi
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Riley Dunlap and Aaron McCright, Organized Climate
Change Denial, The Oxford Handbook of Climate Change
and Society (2011)............................................................................... 32
Roger Revelle and Hans Suess, Carbon Dioxide Exchange
Between Atmosphere and Ocean and the Question of an
Increase of Atmospheric CO2 during the Past Decades, 9
Tellus 18 (1957)..................................................................................... 4
Sally Brain Gentille, Willis E. Bush, Russel O. Jones,
Thomas M. Kirlin, Barbara Moldauer, Edward D. Porter,
and Garrett A. Vaughn, Reinventing Energy: Making the
Right Choices, American Petroleum Institute (1996) ........................ 23
Smoke and Fumes: The Legal and Evidentiary Basis for
Holding Big Oil Accountable for the Climate Crisis,
Center for International Environmental Law (Nov. 2017).............. 6, 7
Suzanne McCarron, A Better Approach on Climate Change,
ExxonMobil (Jan. 10, 2018) ................................................................ 32
vii
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CORPORATE DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1, Amicus Center
for Climate Integrity certifies that it is an initiative within the Institute
for Governance and Sustainable Development, a non-profit
organization. Neither the Center for Climate Integrity nor the Institute
has a parent corporation, and no publicly held company has any
ownership of either. All other amici are private individuals and not
corporations.
1
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IDENTITY AND INTEREST OF AMICUS CURIAE
Individual Amici are scholars and scientists with strong interests,
education, and experience in the environment and the science of climate
change, with particular interest in public information and
communication about climate change and how the public and public
leaders learn about and understand climate change.
Dr. Naomi Oreskes is Professor of the History of Science and
Affiliated Professor of Earth and Planetary Sciences at
Harvard. Professor Oreskes's research focuses on the earth and
environmental sciences, with a particular interest in understanding
scientific consensus and dissent. Her 2010 book, Merchants of
Doubt: How a Handful of Scientists Obscured the Truth on Issues from
Tobacco to Global Warming, co-authored with Erik M. Conway, was
shortlisted for the Los Angeles Time Book Prize, and received the 2011
Watson-Davis Prize from the History of Science Society. She is a 2018-
2019 Guggenheim Fellow. Dr. Geoffrey Supran is a Climate Change
Solutions Fund Postdoctoral Fellow with Prof. Naomi Oreskes in the
Department of History of Science at Harvard University, where he
studies climate change communication with a particular focus on the
2
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history of climate denial by fossil fuel interests. Dr. Robert Brulle is a
Visiting Professor of Environment and Society at Brown University in
Providence RI, and a Professor of Sociology and Environmental Science
at Drexel University in Philadelphia. His research focuses on U.S.
environmental politics, critical theory, and the political and cultural
dynamics of climate change. Dr. Justin Farrell is an author and
Professor in the School of Forestry and Environmental Science, the
School of Management, and the Department of Sociology at Yale
University. He studies environment, elites, misinformation, rural
inequality, and social movements using a mixture of methods from
large-scale computational text analysis, qualitative & ethnographic
fieldwork, network science, and machine learning. Dr. Benjamin
Franta is a J.D. Candidate at Stanford Law School and a Ph. D.
Candidate in the Stanford University Department of History, where he
studies the history of climate science and fossil fuel producers. He
holds a separate Ph. D. in Applied Physics from Harvard University.
Stephan Lewandowsky is a Professor and Chair in Cognitive Science
at the University of Bristol. His research examines the potential conflict
between human cognition and the physics of the global climate. In 2016,
3
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he was appointed a fellow of the Committee for Skeptical Inquiry for his
commitment to science, rational inquiry and public education.
The Center for Climate Integrity (CCI) is an initiative within
the Institute for Governance and Sustainable Development, a non-profit
organization. CCI's central goal is to accelerate corporate and
governmental policy changes that speed the energy transition from
fossil fuels to clean energy sources and that otherwise contribute to a
safe climate.
Amici submit this brief because they understand that the conduct
at the core of the Plaintiffs-Appellees' Complaint is that the Defendants
affirmatively and knowingly concealed the hazards that they knew
would result from the normal use of their fossil fuel products through
misrepresentation about those products and deliberately discrediting
scientific information related to climate change. As such it is critical to
the ultimate outcome of these appeals that full documentation of these
misrepresentations is available to the Court as it considers the
arguments and claims made by Defendants-Appellants and their
supporting amicus, the U.S. Chamber of Commerce.
4
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All parties have consented to the filing of this brief. No party's
counsel authored the brief in whole or in part, no party or party's
counsel contributed money that was intended to fund preparing of
submitting the brief, and no person other than amici or their counsel
contributed money that was intended to fund preparing or submitting
the brief.
5
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INTRODUCTION
At least fifty years ago, Defendants-Appellants (hereinafter,
"Defendants") had information from their own internal research, as well
as from the international scientific community, that the unabated
extraction, production, promotion, and sale of their fossil fuel products
would result in material dangers to the public. Defendants failed to
disclose this information or take steps to protect the public. They also
acted affirmatively to conceal their knowledge and discredit climate
science, running misleading nationwide marketing campaigns and
funding junk science to manufacture uncertainty, in direct contradiction
to their own research and the actions they themselves took to protect
their assets from climate change impacts such as sea level rise.
Defendants' coordinated, multi-front effort, demonstrated by their
own documents and actions, fully justifies the state common law claims
Plaintiffs-Appellees (hereinafter "Plaintiffs") have made. With respect
to Plaintiffs' public nuisance claim, the critical question in determining
liability is "whether the defendant created or assisted in the creation of
the nuisance." City of Modesto Redevelopment Agency v. Superior
1
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Court, 119 Cal. App. 4th 28, 38 (2004); see also County of Santa Clara v.
Atlantic Richfield Co., 137 Cal. App. 4th 292, 306 (2006). In Atlantic
Richfield, for example, the California Court of Appeals explained that
liability is not based on a "defect in a product or a failure to warn but on
affirmative conduct that assisted in the creation of a hazardous
condition." 137 Cal. App. 4th at 309-10. In that case, as in others
brought against producers or manufacturers under California nuisance
law, the court found liability based on "defendants' promotion of [their
product] with knowledge of the hazard that such use would create." Id.
at 309; see also People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th
51, 83-84 (2017); City of Modesto v. Dow Chem. Co., 19 Cal. App. 5th
130, 155 (2018); Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 66-67 &
n.15 (1973).
As early as the late 1950s and no later than 1968, Defendants had
actual knowledge of the risks associated with their fossil fuel products.
It cannot be said that Defendants, in the decades that would follow, did
nothing with this knowledge. They took proactive steps to conceal this
information, sow uncertainty, and fund bought-and-paid-for "science" to
promote alternative theories. And, while they told the world there was
2
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nothing to worry about, Defendants took their climate science into
account in managing their infrastructure, for example, raising the level
of their oil rigs to account for rising sea levels. In doing so, Defendants
created or assisted in creating the nuisance Plaintiffs allege, and
therefore should be held liable.
I. DEFENDANTS HAD ACTUAL KNOWLEDGE OF THE
RISKS ASSOCIATED WITH THEIR FOSSIL FUEL
PRODUCTS
A. Defendants had early knowledge that fossil fuel
products were causing an increase in atmospheric
CO2 concentrations, and that this increase could
result in "catastrophic" consequences.
Defendants knew decades ago of the potential risks associated
with their products, independently and through their membership and
involvement in trade associations such as American Petroleum Institute
(API), American Fuel & Petrochemical Manufacturers, and Western
States Petroleum Association.
API and its members were aware of research on carbon as early as
1954. At that time, Harrison Brown and other scientists at the
California Institute of Technology measured and assessed increased
3
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CO2 concentrations in the atmosphere.1 Although the results were not
published, API and other researchers within the petroleum industry
were aware of this research.2 In 1957, Roger Revelle and Hans Suess at
the Scripps Institute of Oceanography published a paper, in which they
predicted large increases in atmospheric CO2 if fossil fuel production
continued unabated.3 Shortly after, H.R. Brannon of Humble Oil (now
ExxonMobil) published research on the same question, the conclusions
of which were consistent with Brown's findings: increased fossil fuel
combustion increased atmospheric CO2.4
In 1959, physicist Edward Teller delivered the first warning of the
dangers of global warming to the petroleum industry, at a symposium
held at Columbia University to celebrate the 100th anniversary of the
1 Benjamin Franta, Early oil industry knowledge of CO2 and global
warming, 8 Nature Climate Change 1024 (Nov. 19, 2018),
https://www.nature.com/articles/s41558-018-0349-9.
2 Id.
3 Roger Revelle and Hans Suess, Carbon Dioxide Exchange Between
Atmosphere and Ocean and the Question of an Increase of Atmospheric
CO2 during the Past Decades, 9 Tellus 18 (1957),
http://www.tandfonline.com/doi/pdf/10.3402/tellusa.v9i1.9075?needAcc
ess=true.
4 H.R. Brannon, A.C. Daughtry, D. Perry, W.W. Whitaker, and M.
Williams, Radiocarbon evidence on the dilution of atmospheric and
oceanic carbon by carbon from fossil fuels, 38 Trans. Am. Geophys.
Union 643 (Oct. 1957).
4
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industry. Teller described the need to find energy sources other than
fossil fuels to mitigate these dangers, stating, "a temperature rise
corresponding to a 10 per cent increase in carbon dioxide will be
sufficient to melt the icecap and submerge New York. All the coastal
cities would be covered, and since a considerable percentage of the
human race lives in coastal regions, I think that this chemical
contamination is more serious than most people tend to believe."5
Then in 1965, API President Frank Ikard delivered a presentation
at the organization's annual meeting. Ikard informed API's
membership that President Johnson's Science Advisory Committee had
predicted that fossil fuels would cause significant global warming by the
end of the century.6 He issued the following warning about the
consequences of CO2 pollution to industry leaders:
This report unquestionably will fan emotions, raise fears,
and bring demands for action. The substance of the report is
that there is still time to save the world's peoples from the
5 Edward Teller, Energy patterns of the future, 38 Energy and Man: A
Symposium 53, 58 (1960).
6 Frank Ikard, Meeting the challenges of 1966, Proceedings of the
American Petroleum Institute 12-15 (1965),
http://www.climatefiles.com/trade-group/american-petroleum-
institute/1965-api-president-meeting-the-challenges-of-1966/.
5
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catastrophic consequence of pollution, but time is running
out.7
Over the next few years, scientific research continued to bolster
the conclusion that the combustion of fossil fuels was the primary driver
of climate change. For example, the Stanford Research Institute (SRI)
report commissioned by API and distributed to its board members and
made available to API's members, warned that "rising levels of CO2
would likely result in rising global temperatures and that, if
temperatures increased significantly, the result could be melting ice
caps, rising sea levels, warming oceans, and serious environmental
damage on a global scale."8 The scientists acknowledged that burning
of fossil fuels provided the best explanation for an increase in CO2.9
In 1969, API commissioned a supplemental report by SRI that
provided a more detailed assessment on CO2. The report stated that:
atmospheric concentrations of CO2 were steadily increasing; 90% of this
7 Id. at 13.
8 Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big
Oil Accountable for the Climate Crisis, Center for International
Environmental Law 12 (Nov. 2017), https://www.ciel.org/wp-
content/uploads/2017/11/Smoke-Fumes-FINAL.pdf.
9 Elmer Robinson and R.C. Robbins, Sources, Abundance, and Fate of
Gaseous Atmospheric Pollutants, Stanford Research Institute 3 (1968),
https://www.smokeandfumes.org/documents/document16.
6
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increase could be attributed to fossil fuel combustion; and continued use
of fossil fuels would result in further increases of CO2 levels in the
atmosphere.10 The report projected that based on current fuel usage,
atmospheric CO2 concentrations would reach 370 ppm by 2000--exactly
what it turned out to be.11 All of this research was summarized and
shared with API members, including Defendants.12
A 1977 presentation and 1978 briefing by senior Exxon scientist
James F. Black warned the Exxon Corporation Management Committee
that CO2 concentrations were building in the Earth's atmosphere at an
increasing rate, that CO2 emissions were attributable to fossil fuels, and
that CO2 was contributing to global warming.13 Speaking to the
emerging scientific consensus on climate change at the time, Black
acknowledged that there was general scientific agreement that carbon
10 Smoke and Fumes, supra note 8, at 12.
11 Global Mean CO2 Mixing Ratios (ppm): Observations, NASA Goddard
Institute for Space Studies,
https://data.giss.nasa.gov/modelforce/ghgases/Fig1A.ext.txt (last
visited Jan. 25, 2019).
12 Environmental Research, A Status Report, American Petroleum
Institute (Jan. 1972), http://files.eric.ed.gov/fulltext/ED066339.pdf.
13 Memo from J.F. Black to F.G. Turpin re The Greenhouse Effect,
Exxon Research and Engineering Company 3 (June 6, 1978),
http://www.climatefiles.com/exxonmobil/1978-exxon-memo-on-
greenhouse-effect-for-exxon-corporation-management-committee/.
7
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dioxide released from the burning of fossil fuels was likely influencing
global climate, and stated:
Present thinking holds that man has a time window of five
to ten years before the need for hard decisions regarding
changes in energy strategies might become critical.14
Black expressed no uncertainty as to whether climate change was
real and caused by burning of fossil fuels. Former Exxon scientist, Ed
Garvey, described the situation as follows: "By the late 1970s, global
warming was no longer speculative."15 As Garvey explained during an
interview in 2018, "The issue was not were we going to have a problem,
the issue was simply how soon and how fast and how bad was it going
to be. Not if."16
In sum, through the 1950s, 1960s, and 1970s, the science showed,
unequivocally, that fossil fuels were driving climate change. Not only
14 Id. at 3.
15 James Osborne, INTERVIEW: Former Exxon scientist on oil giant's
1970s climate change research, Dallas News (Oct. 2015),
https://www.dallasnews.com/business/business/2015/10/02/interview-
former-exxon-scientist-on-oil-giants-1970s-climate-change-research.
16 Amy Westervelt, Drilled: A True Crime Podcast about Climate
Change, Episode 1, The Bell Labs of Energy (interview with Ed Garvey
at 11:10) (Nov. 14, 2018), https://www.criticalfrequency.org/drilled.
8
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did the science make clear the link between CO2 emissions and global
warming, Defendants had knowledge of this scientific consensus.
B. Defendants conducted their own climate science
research that confirmed fossil fuels were increasing
atmospheric carbon dioxide and affecting the climate.
From the late 1970s through early 1980s, Defendants repeatedly
confirmed the science of climate change with their own research.17
Exxon, in particular, became a leader in the growing field of
climate science. Following Black's and others' warnings, Exxon
launched an ambitious research program to study the environmental
effects of greenhouse gases and their impacts. The company assembled
a team of scientists, modelers, and mathematicians that spent more
than a decade deepening the company's understanding of an
environmental problem that posed an existential threat to its business
interests.18 As Exxon senior scientist Morrel Cohen explained: "Exxon
17 Between 1983-84, Exxon's researchers published their results in at
least three peer-reviewed papers in the Journal of the Atmospheric
Sciences and American Geophysical Union. A list of "Exxon Mobil
Contributed Publications" from 1983-2014 is available at:
https://cdn.exxonmobil.com/~/media/global/files/energy-and-
environment/climate_peer_reviewed_publications_1980s_forward.pdf.
18 Geoffrey Supran and Naomi Oreskes, Assessing ExxonMobil's climate
change communications (19772014), 12(8) Environmental Research
9
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was trying to become a research power in the energy industry the way
the Bell Labs was in the communications industry."19 The research
program included both empirical CO2 sampling and rigorous climate
modeling, and was perceived by those within the company and industry
as being on the cutting edge of research into what was then known as
the "greenhouse effect." By 1982, Exxon's scientists, in collaboration
with other industry scientists, had created powerful climate models that
confirmed the scientific consensus that the continued increase of CO2
from fossil fuels would cause significant global warming by the middle
of the 21st century with "potentially catastrophic" effects, and
communicated these findings internally.20
In 1979, W.L. Ferrall described the findings of an internal Exxon
study a concluding that the "increase [in CO2 concentration] is due to
Letters 084019 (Aug. 23, 2017),
http://iopscience.iop.org/article/10.1088/1748-9326/aa815f.
19 Westervelt, supra note 16 (interview with Morrell Cohen at 6:21); see
also John Walsh, Exxon Builds on Basic Research, 225 Science 1001
(1984), https://www.documentcloud.org/documents/5690867-1984-
Walsh-Exxon-Builds-on-Basic-Reseach.html.
20 See e.g. Memo from M.B. Glaser to Exxon Management re CO2
"Greenhouse" Effect, Exxon Research and Engineering Company 11
(Nov. 12, 1982),
http://insideclimatenews.org/sites/default/files/documents/1982%20Exx
on%20Primer%20on%20CO2%20Greenhouse%20Effect.pdf.
10
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fossil fuel combustion[, i]ncreasing CO2 concentration will cause a
warming of the earth's surface[, and t]he present trend of fossil fuel
consumption will cause dramatic environmental effects before the year
2050."21 With a doubling of CO2 concentration (using 1860 as a
baseline), Ferrall predicted that "ocean levels would rise four feet" and
the "Arctic Ocean would be ice free for at least six months each year,
causing major shifts in weather patterns in the northern hemisphere."22
A 1980 presentation by Dr. John Laurman to the API Task Force
on "The CO2 Problem" identified the "scientific consensus on the
potential for large future climatic response to increased CO2 levels" as a
reason for concern, and stated that there was "strong empirical
evidence" that climate change was caused by fossil fuel combustion.23
Laurman also warned the API Task Force that foreseeable temperature
21 Memo from W.L. Ferrall to R.L. Hirsch re "Controlling Atmospheric
CO2", Exxon Research and Engineering Company 1 (Oct. 16, 1979),
http://insideclimatenews.org/sites/default/files/documents/CO2%20and
%20Fuel%20Use%20Projections.pdf.
22 Id., Appendix A at 1.
23 AQ-9 Task Force Meeting Minutes, American Petroleum Institute,
Attachment B at 1-2 (Mar. 18, 1980),
https://insideclimatenews.org/sites/default/files/documents/AQ-
9%20Task%20Force%20Meeting%20%281980%29.pdf.
11
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increases could have "major economic consequences" and "globally
catastrophic effects."24
By 1981, Exxon had internally acknowledged the risks of climate
change and the role fossil fuel combustion played in increasing CO2
concentrations in the atmosphere. In an internal memorandum
outlining Exxon's position on the CO2 greenhouse effect, Exxon scientist
Henry Shaw wrote that a doubling of CO2 would result in 3°C increase
in average global temperature and 10°C increase at the poles, causing
major shifts in rainfall/agriculture, and melting of polar ice.25 Also in
1981, Roger Cohen, director of Exxon's Theoretical and Mathematical
Sciences Laboratory, warned about the magnitude of climate change:
"we will unambiguously recognize the threat by the year 2000 because
of advances in climate modeling and the beginning of real experimental
confirmation of the CO2 effect."26 He stated: "it is distinctly possible
24 Id., Attachment B at 5.
25 Memo from Henry Shaw to Dr. E.E. David, Jr. re "CO2 Position
Statement", Exxon Inter-Office Correspondence 2 (May 15, 1981),
https://insideclimatenews.org/sites/default/files/documents/Exxon%20P
osition%20on%20CO2%20%281981%29.pdf.
26 Memo from R.W. Cohen to W. Glass re possible "catastrophic" effect of
CO2, Exxon Corporation 1 (Aug. 18, 1981),
http://www.climatefiles.com/exxonmobil/1981-exxon-memo-on-possible-
emission-consequences-of-fossil-fuel-consumption.
12
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that [Exxon Planning Division's] scenario will later produce effects
which will indeed be catastrophic (at least for a substantial fraction of
the earth's population)."27
In 1982, Cohen summarized the findings of Exxon's research in
climate modeling, stating that "over the past several years a clear
scientific consensus has emerged regarding the expected climatic effects
of increased atmospheric CO2." (emphasis added)28 Cohen
acknowledged that Exxon shared the views of the mainstream science
community, stating that there is "unanimous agreement in the scientific
community that a temperature increase of this magnitude would bring
about significant changes in the earth's climate," and that Exxon's
findings were "consistent with the published predictions of more
complex climate models" and "in accord with the scientific consensus on
the effect of increased atmospheric CO2 on climate."29
27 Id.
28 Memo from R. W. Cohen to A.M. Natkin, Exxon Research and
Engineering Company 1 (Sept. 2, 1982),
http://www.climatefiles.com/exxonmobil/1982-exxon-memo-
summarizing-climate-modeling-and-co2-greenhouse-effect-research/.
29 Id. at 2.
13
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Industry documents from the 1980s provide further evidence that
Exxon and other Defendants internally acknowledged that climate
change was real, it was caused by fossil fuel consumption, and it would
have significant impacts on the environment and human health.
Notably, a 1982 corporate primer--circulated internally to Exxon
management--recognized the need for "major reductions in fossil fuel
combustion" as a means to mitigate global warming. In the absence of
such reductions, "there are some potentially catastrophic events that
must be considered . . . [O]nce the effects are measurable, they might
not be reversible . . ."30
The 1982 Exxon primer predicted a doubling of CO2
concentrations (above pre-industrial levels) by 2060 and increased
temperatures of 2-4 degrees Celsius (above 1982 levels) by the end of
the 21st century. It also provided a detailed assessment of the
"potentially catastrophic" impacts of global warming, including primary
impacts on physical and biological systems and secondary impacts (e.g.
migration, famine).
30 Memo from M.B. Glaser to Exxon Management re CO2 "Greenhouse"
Effect, supra note 20, at 2 and 11.
14
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A 1988 report by Shell's Greenhouse Effect Working Group issued
similar warnings to those of Exxon: "Man-made carbon dioxide,
released into and accumulated in the atmosphere, is believed to warm
the earth through the so-called greenhouse effect."31 The report stated
that "by the time the global warming becomes detectable it could be too
late to take effective countermeasures to reduce the effects or even to
stabilise the situation."32 Acknowledging the need to consider policy
changes, the report provided that "the potential implications for the
world are . . . so large that policy options need to be considered much
earlier" and that research should be "directed more to the analysis of
policy and energy options than to studies of what we will be facing
exactly."33
The Shell report made detailed predictions of the harmful impacts
of global warming. It noted that warming could cause the melting of
the West Antarctic Ice Sheet, which in turn could result in sea level rise
31 R.P.W.M Jacobs, M.H. Griffiths, P.E. Bright, J.B. Homer, J.A.C.M.
van Oudenhoven, and J. Waller, The Greenhouse Effect, Shell
Internationale Petroleum Maatschappij B.V., The Hague 1 (May 1988),
https://www.documentcloud.org/documents/4411090-
Document3.html#document/p9/a411239.
32 Id.
33 Id.
15
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of 5-6 meters. It also predicted the "disappearance of specific
ecosystems or habitat destruction," an increase in "runoff, destructive
floods, and inundation of low-lying farmland," and the need for new
sources of freshwater to compensate for changes in precipitation. The
report forecasted that changes in global atmospheric temperature would
"drastically change the way people live and work."34
In the 1970s and 1980s, Defendants pursued cutting-edge
research and amassed considerable data on climate change. Their own
research and data confirmed their earlier knowledge and led to the
undeniable conclusion that continuing to expand fossil fuel use would
lead to irreversible and catastrophic climate change. With this
certainty, Defendants in the early 1980s were at a turning point.
II. DEFENDANTS TOOK PROACTIVE STEPS TO CONCEAL
THEIR KNOWLEDGE AND DISCREDIT CLIMATE
SCIENCE
But at this turning point, and despite acknowledging that an
increasing level of atmospheric CO2 is causing considerable concern due
34 Benjamin Franta, Shell and Exxon's secret 1980s climate change
warnings, The Guardian (Sept. 19, 2018, 6:00am),
https://www.theguardian.com/environment/climate-consensus-97-per-
cent/2018/sep/19/shell-and-exxons-secret-1980s-climate-change-
warnings (citing The Greenhouse Effect, Shell International).
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to potential climate effects, Exxon and the other Defendants decided not
to take steps to prevent the risks of climate change. Instead, they
stopped funding climate research, and began a campaign to discredit
climate science and delay actions perceived as contrary to their business
interests.35 Defendants proactively engaged in multiple steps to carry
out this campaign: (1) developing internal policies and strategies in
contradiction of their knowledge and science, (2) disseminating public
communications designed to manufacture doubt and minimize the risks
of climate change; and (3) funding organizations and research that
discredited the growing body of publicly available climate science.
As a result, many of the dire predictions Defendants' own
scientists made in the 1950s through the 1970s have come to pass.
A. Defendants developed sophisticated strategies to hide
the risks of climate change and create doubt about
the scientific consensus of global warming.
Defendants developed internal strategies and policies to hide the
risks of climate change. Following Exxon's lead, the fossil fuel industry
35 Memo from A.M. Natkin to H.N. Weinberg re CRL/CO2 Greenhouse
Program, Exxon Corporation 1 (June 18, 1982),
http://insideclimatenews.org/sites/default/files/documents/Budget%20C
utting%20Memo%20(1982).pdf.
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responded to public policy efforts to address the dangers of its products
by denying and concealing the known hazards, in contradiction to
earlier positions and statements made by industry scientists and
executives. The internal memoranda and statements described below
demonstrate this marked shift in the industry's position on climate
science.
Exxon, in a 1988 internal memo on the Greenhouse Effect,
acknowledged that atmospheric CO2 concentrations were increasing and
could double in 100 years, that the combustion of fossil fuels emits five
billion gigatons of CO2 per year, and that the "[g]reenhouse effect may
be one of the most significant environmental issues for the 1990s."36
But in this same memo, Exxon identified that its position would be to
"[e]mphasize the uncertainty in scientific conclusions regarding the
potential enhanced Greenhouse effect[.]"37
Shell, as evidenced by an 1994 internal report titled "The
Enhanced Greenhouse Effect: A Review of the Scientific Aspects,"
followed suit with Exxon in the strategy of emphasizing uncertainty in
36 Id. at 2.
37 Id. at 7.
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climate science. In contrast to Shell's 1988 report that recommended
the consideration of policy solutions early on, the 1994 report pivoted to
the theme of scientific uncertainty, noting that "the postulated link
between any observed temperature rise and human activities has to be
seen in relation to natural variability, which is still largely
unpredictable." Shell also promoted policy delay, asserting that
"[s]cientific uncertainty and the evolution of energy systems indicate
that policies to curb greenhouse gas emissions beyond `no regrets'
measures could be premature, divert resources from more pressing
needs and further distort markets."38
Industry associations and groups, such as the Global Climate
Coalition (GCC), took similar positions. Established in 1989, the GCC
identified itself as "an organization of business trade associations and
private companies . . . to coordinate business participation in the
38 P. Langcake, The Enhanced Greenhouse Effect: A Review of the
Scientific Aspects, Shell Internationale Petroleum Maatschappij B.V.,
The Hague (Dec. 1994),
https://www.documentcloud.org/documents/4411099-
Document11.html#document/p15/a411511.
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scientific and policy debate on global climate change issue"39--but in
effect, the group opposed greenhouse gas regulation through lobbying,
funding of front groups, the spread of denial and disinformation, and
other tactics. The GCC's members included the National Association of
Manufacturers, American Petroleum Institute, and several fossil fuel
companies.
In 1996, following publication of the Intergovernmental Panel on
Climate Change's Second Assessment Report, the GCC developed a
primer that provided an overview of the group's position on climate
change. While acknowledging that global warming was happening, the
GCC claimed that there was significant uncertainty as to the cause of
warming:
The GCC believes that the preponderance of the evidence
indicates that most, if not all, of the observed warming is
part of a natural warming trend which began approximately
400 years ago. If there is an anthropogenic component to
this observed warming, the GCC believes that it must be
very small and must be superimposed on a much larger
natural warming trend.40
39 Global Climate Coalition: An Overview, Global Climate Coalition 1
(Nov. 1996), http://www.climatefiles.com/denial-groups/global-climate-
coalition-collection/1996-global-climate-coalition-overview/.
40 Id. at 2.
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This statement not only stands in contradiction to the large
number of internal memos and peer-reviewed papers published by
Defendants' own scientists but also to the final internal draft of the
GCC primer, which stated that the "scientific basis for the Greenhouse
Effect and the potential impacts of human emissions of greenhouse
gases such as CO2 on climate is well established and cannot be
denied."41 This language was removed before final publication. The
final internal draft also included a section discussing how contrarian
theories failed to "offer convincing arguments against the conventional
model of greenhouse gas emission-induced climate change."42 This
section was also removed by the GCC before final publication.
As their memoranda and statements show, Defendants--knowing
the continued expansion of fossil fuel use represented a turning point
41 Memo from Gregory J. Dana to AIAM Technical Committee re Global
Climate Coalition (GCC) Primer on Climate Change Science Final
Draft, Association of International Automobile Manufacturers 5 (Jan.
18, 1996), http://www.climatefiles.com/denial-groups/global-climate-
coalition-collection/global-climate-coalition-draft-primer/.
42 Memo from Gregory J. Dana to AIAM Technical Committee re Global
Climate Coalition (GCC) Primer on Climate Change Science Final
Draft, supra note 41.
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for the global climate--undertook a deliberate shift away from their
prior research efforts to the strategy of uncertainty and delay.
B. Defendants engaged in public communications
campaigns designed to manufacture doubt and
minimize the risks of climate change.
Communications efforts aimed at the general public were, and
continue to be, a key part of Defendants' strategy. Defendants
disseminated numerous publications and advertisements that directly
contradicted earlier statements that recognized a general consensus on
climate change and the magnitude of its effects.
For example, in 1996, Exxon issued a publication titled "Global
warming: who's right? Facts about a debate that's turned up more
questions than answers," in which Exxon CEO Lee Raymond stated
that "taking drastic action immediately is unnecessary since many
scientists agree there's ample time to better understand climate
systems . . ." The publication characterized the greenhouse effect as
"unquestionably real and definitely a good thing," and as "what makes
the earth's atmosphere livable." Directly contradicting the company's
decades of internal reports and peer-reviewed science, the publication
attributed the increase in global temperature to "natural fluctuations
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that occur over long periods of time" rather than to anthropogenic
sources.43
Also in 1996, API published a book titled "Reinventing Energy:
Making the Right Choices," which stated that "there is no persuasive
basis for forcing Americans to dramatically change their lifestyles to use
less oil." The book denied the human connection to climate change,
stating that no "scientific evidence exists that human activities are
significantly affecting sea levels, rainfall, surface temperatures or the
intensity and frequency of storms."44 In 1997, Exxon CEO Lee
Raymond expressed support for these views. In a speech presented at
the World Petroleum Congress at which many of the Defendants were
present, Raymond presented a false dichotomy between stable energy
43 Global warming: who's right? Facts about a debate that's turned up
more questions than answers, Exxon Corporation 5 (1996),
http://www.climatefiles.com/exxonmobil/global-warming-who-is-right-
1996/.
44 Sally Brain Gentille, Willis E. Bush, Russel O. Jones, Thomas M.
Kirlin, Barbara Moldauer, Edward D. Porter, and Garrett A. Vaughn,
Reinventing Energy: Making the Right Choices, American Petroleum
Institute 77 (1996), http://www.climatefiles.com/trade-group/american-
petroleum-institute/1996-reinventing-energy/.
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markets and reduction in the marketing, promotion and sale of fossil
fuel products known to Defendants to be hazardous.45
In addition to these public statements, Defendants developed,
implemented and/or funded public affairs programs, aiming to shift
"America's social consciousness" by targeting specific people or groups of
people with messages designed for them.46 From 1972 through 2014,
Mobil and ExxonMobil ran advertorials (paid advertisements that were
styled like editorials and placed on the Op-Ed page) in The New York
Times,47 some of which were intended to allow the "public to know
where [they] stand" on climate change and other issues.48 In an
internal assessment of the impacts of its advertorials, Mobil concluded
that the Times had "altered or significantly softened its viewpoints on:
45 Lee R. Raymond, Energy Key to growth and a better environment for
Asia-Pacific nations, World Petroleum Congress 5 (Oct. 13, 1997),
https://assets.documentcloud.org/documents/2840902/1997-Lee-
Raymond-Speech-at-China-World-Petroleum.pdf.
46 See e.g. Evolution of Mobil's Public Affairs Programs 1970-81, Mobil
2, https://www.documentcloud.org/documents/5396414-Reduced-
Evolution-of-Mobil-Public-Affairs-Program.html (last visited Jan. 25,
2019).
47 Exxon and Mobil Ads, Polluter Watch, http://polluterwatch.org/exxon-
and-mobil-ads (last visited Jan. 25, 2019).
48 Mobil, CNN and the value of instant replay, New York Times (Oct. 16,
1997), http://www.documentcloud.org/documents/705559-mob-nyt-
1997-oct-16-cnnslam.html.
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conservation; monopoly and divestiture; decontrol; natural gas; coal;
offshore drilling; and gasohol."49
Amici Dr. Supran and Dr. Orestes compared ExxonMobil's
internal and peer-reviewed scientific papers to its external public
communications (including thirty-six Times advertorials from 1989 to
2004) found a stark contrast between the way that the two sets of
documents characterized climate change, strongly suggesting that
company leadership was aware of its responsibility for climate change,
even as it denied in public that the problem was real. Dr. Supran and
Dr. Orestes found that 83% of peer-reviewed papers and 80% of internal
documents acknowledge that climate change is real and human-caused,
yet only 12% of advertorials do so, with 81% instead expressing doubt.50
Similarly, an industry-funded organization called the Information
Council on the Environment (ICE) launched a national climate change
denial campaign with print and radio advertisements, designed to
discredit climate science and cherry-pick the data in order to confuse
49 Mobil, Op-Ed Impact Study: A Comparative Analysis of Energy
Viewpoints in The Op-Ed Advertisements and The New York Times
Editorials, 1970-1980 (on file).
50 Supran and Oreskes, supra note 18, at 1.
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the public and promote uncertainty (ICE was formed and supported by
affiliates, predecessors and/or subsidiaries of Defendants).51 ICE's
primary strategy was to "reposition global warming as theory (not
fact),"52 a clear acknowledgement that global warming had previously
been positioned and accepted as fact within the scientific community.
In 1996, API created the Global Climate Science Communications
Team (GCSCT), a small group of prominent representatives of fossil
fuel companies, public relations firms, and industry front groups with
the mission of undermining the global scientific consensus that climate
change was real and human caused. In 1998, after the Kyoto Protocol
was signed, the GCSCT developed a plan to launch a multi-million-
51 Among others, members included: Western Fuels Association,
National Coal Association, Edison Electric Institute, Island Creek Coal
Company (subsidiary of Occidental Petroleum), Peabody Coal
Company, and Pittsburgh and Midway Coal Mining (subsidiary of
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|
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 1 of 48
No. 19-1644
United States Court Of Appeals
For the Fourth Circuit
Mayor and City Council of Baltimore,
Plaintiff-Appellee,
v.
BP P.L.C.; et al.,
Defendants-Appellants.
On Appeal From The United States District Court,
For The District of Maryland
Case No. 1:18-cv-02357-ELH
(Hon. Ellen L. Hollander)
BRIEF OF AMICI CURIAE ROBERT BRULLE, CENTER FOR
CLIMATE INTEGRITY, THE CHESAPEAKE CLIMATE ACTION
NETWORK, JUSTIN FARRELL, BENJAMIN FRANTA,
STEPHAN LEWANDOWSKY, NAOMI ORESKES, GEOFFREY
SUPRAN, and the UNION OF CONCERNED SCIENTISTS
IN SUPPORT OF PLAINTIFF-APPELLEE AND AFFIRMANCE
Mark A. Griffin
Amy Williams-Derry
Daniel P. Mensher
Alison S. Gaffney
KELLER ROHRBACK L.L.P.
1201 THIRD AVENUE, SUITE 3200
SEATTLE, WA 98101-3052
Tel: (206) 623-1900
Counsel for Amici Curiae
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 2 of 48
CORPORATE DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1, Amicus Center
for Climate Integrity certifies that it is an initiative within the Institute
for Governance and Sustainable Development, a non-profit
organization. Neither the Center for Climate Integrity nor the Institute
has a parent corporation, and no publicly held company has any
ownership of either. Amicus Chesapeake Climate Action Network
certifies that it is a non-profit organization. The Chesapeake Climate
Action Network does not have a parent corporation, and no publicly
held company has any ownership of the organization. Amicus Union of
Concerned Scientists also certifies that it is a non-profit organization.
The Union of Concerned Scientists does not have a parent corporation,
and no publicly held company has any ownership of the organization.
All other amici are private individuals and not corporations.
i
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 3 of 48
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .......................................... i
IDENTITY AND INTEREST OF AMICI CURIAE ................................ 1
I. INTRODUCTION.................................................................. 5
II. DEFENDANTS HAD ACTUAL KNOWLEDGE
OF THE RISKS ASSOCIATED WITH THEIR
FOSSIL FUEL PRODUCTS ................................................. 6
A. Defendants had early knowledge that fossil
fuel products were causing an increase in
atmospheric CO2 concentrations, and that
this increase could result in "catastrophic"
consequences. ............................................................... 6
B. Defendants conducted their own climate
science research that confirmed fossil fuel
combustion was increasing atmospheric
carbon dioxide concentrations and that this
would affect the climate. ............................................ 12
III. DEFENDANTS TOOK PROACTIVE STEPS TO
CONCEAL THEIR KNOWLEDGE AND
DISCREDIT CLIMATE SCIENCE..................................... 19
A. Defendants developed sophisticated public
relations strategies to deny the risks of
climate change and create doubt about the
scientific consensus of global warming...................... 20
B. Defendants engaged in public
communications campaigns designed to
manufacture doubt and downplay the
threats of climate change........................................... 24
ii
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 4 of 48
C. Defendants funded individuals,
organizations, and research to discredit the
growing body of publicly available climate
science. ....................................................................... 31
IV. DEFENDANTS MOVED TO PROTECT THEIR
OWN ASSETS FROM CLIMATE IMPACTS
BASED ON THE SCIENCE THEY PUBLICLY
DISCREDITED ................................................................... 34
V. CONCLUSION .................................................................... 37
iii
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 5 of 48
TABLE OF AUTHORITIES
Page(s)
2007 Corporate Citizenship Report, ExxonMobil 39 (2007) ................... 33
Amy Lieberman and Susanne Rust, Big Oil braced for global
warming while it fought regulations, Los Angeles Times
(Dec. 31, 2015)......................................................................... 35, 36, 37
Amy Westervelt, Drilled: A True Crime Podcast about
Climate Change, Episode 1, The Bell Labs of Energy
(interview with Ed Garvey at 11:10) (Nov. 14, 2018) .................. 11, 13
AQ-9 Task Force Meeting Minutes, American Petroleum
Institute, Attachment B at 1-2 (Mar. 18, 1980) ................................. 14
Benjamin Franta, Early oil industry knowledge of CO2 and
global warming, 8 Nature Climate Change 1024 (Nov. 19,
2018)...................................................................................................... 7
Benjamin Franta, Shell and Exxon's secret 1980s climate
change warnings, The Guardian (Sept. 19, 2018, 6:00am)................ 18
Benjamin Franta, Trump pulled out the oil industry
playbook and players for Paris, The Guardian (July 26,
2017).................................................................................................... 22
Edward Teller, Energy patterns of the future, 38 Energy and
Man: A Symposium 53, 58 (1960)......................................................... 8
Elmer Robinson and R.C. Robbins, Sources, Abundance, and
Fate of Gaseous Atmospheric Pollutants, Stanford
Research Institute 3 (1968) .................................................................. 9
Environmental Research, A Status Report, American
Petroleum Institute (Jan. 1972) ......................................................... 10
Evolution of Mobil's Public Affairs Programs 1970-81 .......................... 26
Exxon and Mobil Ads, Polluter Watch.................................................... 26
iv
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 6 of 48
ExxonMobil Foundation & Corporate Giving to Climate
Change Denier & Obstructionist Organizations, UCS
(2017)............................................................................................. 33, 34
Frank Ikard, Meeting the challenges of 1966, Proceedings of
the American Petroleum Institute 12-15 (1965) .............................. 8, 9
Geoffrey Supran and Naomi Oreskes, Assessing
ExxonMobil's climate change communications (1977
2014), 12(8) Environmental Research Letters 084019
(Aug. 23, 2017) ........................................................................ 12, 13, 27
Global Climate Coalition: An Overview, Global Climate
Coalition 1 (Nov. 1996) ................................................................. 22, 23
Global Climate Science Communications Team Action Plan,
American Petroleum Institute 4 (Apr. 3, 1998) ........................... 29, 30
Global Mean CO2 Mixing Ratios (ppm): Observations, NASA
Goddard Institute for Space Studies .................................................. 10
Global warming: who's right? Facts about a debate that's
turned up more questions than answers, Exxon
Corporation 5 (1996) ........................................................................... 25
Greenhouse Effect: Shell Anticipates A Sea Change, New
York Times (Dec. 20, 1989)................................................................. 35
H.R. Brannon, A.C. Daughtry, D. Perry, W.W. Whitaker, and
M. Williams, Radiocarbon evidence on the dilution of
atmospheric and oceanic carbon by carbon from fossil
fuels, 38 Trans. Am. Geophys. Union 643 (Oct. 1957) ......................... 7
James Osborne, INTERVIEW: Former Exxon scientist on oil
giant's 1970s climate change research, Dallas News (Oct.
2015).................................................................................................... 11
John Walsh, Exxon Builds on Basic Research, 225 Science
1001 (1984).......................................................................................... 13
v
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 7 of 48
Kathy Mulvey and Seth Shulman, The Climate Deception
Dossiers: Internal Fossil Fuel Industry Memos Reveal
Decades of Corporate Disinformation at 22, Union of
Concerned Scientists 21 (July 2015) ...................................... 28, 30, 32
Lee R. Raymond, Energy Key to growth and a better
environment for Asia-Pacific nations, World Petroleum
Congress 5 (Oct. 13, 1997) .................................................................. 26
Letter from Dr. Patrick Michaels, Information Council on
the Environment 9 (May 15, 1991)..................................................... 28
Memo from A.M. Natkin to H.N. Weinberg re CRL/CO2
Greenhouse Program, Exxon Corporation 1 (June 18,
1982) .................................................................................................... 19
Memo from Gregory J. Dana to AIAM Technical Committee
re Global Climate Coalition (GCC) Primer on Climate
Change Science Final Draft, Association of
International Automobile Manufacturers 5 (Jan. 18, 1996)........ 23, 24
Memo from Henry Shaw to Dr. E.E. David, Jr. re "CO2
Position Statement", Exxon Inter-Office Correspondence 2
(May 15, 1981) .................................................................................... 15
Memo from J.F. Black to F.G. Turpin re The Greenhouse
Effect, Exxon Research and Engineering Company 3
(June 6, 1978)................................................................................ 10, 11
Memo from Joseph Carlson to DGL re The Greenhouse
Effect 2 (Aug. 3, 1988) ........................................................................ 20
Memo from M.B. Glaser to Exxon Management re CO2
"Greenhouse" Effect, Exxon Research and Engineering
Company 11 (Nov. 12, 1982)......................................................... 13, 17
Memo from R. W. Cohen to A.M. Natkin, Exxon Research
and Engineering Company 1 (Sept. 2, 1982)...................................... 16
vi
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 8 of 48
Memo from R.W. Cohen to W. Glass re possible
"catastrophic" effect of CO2, Exxon Corporation 1 (Aug.
18, 1981) .............................................................................................. 15
Memo from W.L. Ferrall to R.L. Hirsch re "Controlling
Atmospheric CO2", Exxon Research and Engineering
Company 1 (Oct. 16, 1979).................................................................. 14
Mobil, CNN and the value of instant replay, New York Times
(Oct. 16, 1997) ..................................................................................... 27
Mobil, Op-Ed Impact Study: A Comparative Analysis of
Energy Viewpoints in The Op-Ed Advertisements and The
New York Times Editorials, 1970-1980 ............................................. 27
P. Langcake, The Enhanced Greenhouse Effect: A Review of
the Scientific Aspects, Shell Internationale Petroleum
Maatschappij B.V. (Dec. 1994) ........................................................... 21
Pattanun Achakulwisut et al., Ending ExxonMobil
Sponsorship of the American Geophysical Union (Mar.
2016).................................................................................................... 34
R.P.W.M Jacobs, M.H. Griffiths, P.E. Bright, J.B. Homer,
J.A.C.M. van Oudenhoven, and J. Waller, The Greenhouse
Effect, Shell Internationale Petroleum Maatschappij B.V.,
The Hague 1 (May 1988) .............................................................. 17, 18
Riley Dunlap and Aaron McCright, Organized Climate
Change Denial, The Oxford Handbook of Climate Change
and Society (2011)............................................................................... 34
Roger Revelle and Hans Suess, Carbon Dioxide Exchange
Between Atmosphere and Ocean and the Question of an
Increase of Atmospheric CO2 during the Past Decades, 9
Tellus 18 (1957)..................................................................................... 7
Sally Brain Gentille, Willis E. Bush, Russel O. Jones,
Thomas M. Kirlin, Barbara Moldauer, Edward D. Porter,
and Garrett A. Vaughn, Reinventing Energy: Making the
Right Choices, American Petroleum Institute 77 (1996) ................... 25
vii
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 9 of 48
Smoke and Fumes: The Legal and Evidentiary Basis for
Holding Big Oil Accountable for the Climate Crisis,
Center for International Environmental Law 12 (Nov.
2017)................................................................................................ 9, 10
Suzanne Goldenberg, Exxon knew of climate change in 1981,
email says but it funded deniers for 27 more years, The
Guardian (July 8, 2015) ...................................................................... 33
viii
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 10 of 48
IDENTITY AND INTEREST OF AMICI CURIAE
Individual Amici are scholars and scientists with strong interests,
education, and experience in the environment and the science of climate
change, with particular interest in public information and
communication about climate change and how the public and public
leaders learn about and understand climate change.
Dr. Naomi Oreskes is Professor of the History of Science and
Affiliated Professor of Earth and Planetary Sciences at
Harvard. Professor Oreskes's research focuses on the earth and
environmental sciences, with a particular interest in understanding
scientific consensus and dissent. Her 2010 book, Merchants of
Doubt: How a Handful of Scientists Obscured the Truth on Issues from
Tobacco to Global Warming, co-authored with Erik M. Conway, was
shortlisted for the Los Angeles Time Book Prize, and received the 2011
Watson-Davis Prize from the History of Science Society. She is a 2018-
2019 Guggenheim Fellow. Dr. Geoffrey Supran is a Research
Associate in the Department of the History of Science at Harvard
University. Working alongside Prof. Naomi Oreskes, Dr. Supran
investigates the history of climate communications and denial by fossil
1
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 11 of 48
fuel interests. Dr. Robert Brulle is a Visiting Professor of
Environment and Society at Brown University in Providence, Rhode
Island, and a Professor of Sociology and Environmental Science at
Drexel University in Philadelphia. His research focuses on U.S.
environmental politics, critical theory, and the political and cultural
dynamics of climate change. Dr. Justin Farrell is an author and
Professor in the School of Forestry and Environmental Science, the
School of Management, and the Department of Sociology at Yale
University. He studies environment, elites, misinformation, rural
inequality, and social movements using a mixture of methods from
large-scale computational text analysis, qualitative & ethnographic
fieldwork, network science, and machine learning. Dr. Benjamin
Franta is a J.D. Candidate at Stanford Law School and a Ph.D.
Candidate in the Stanford University Department of History, where he
studies the history of climate science and fossil fuel producers. He
holds a separate Ph.D. in Applied Physics from Harvard University.
Stephan Lewandowsky is a Professor and Chair in Cognitive Science
at the University of Bristol. His research examines the potential
conflict between human cognition and the physics of the global climate.
2
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 12 of 48
In 2016, he was appointed a fellow of the Committee for Skeptical
Inquiry for his commitment to science, rational inquiry, and public
education.
The Center for Climate Integrity (CCI) is an initiative within
the Institute for Governance and Sustainable Development, a non-profit
organization. CCI's central goal is to accelerate corporate and
governmental policy changes that speed the energy transition from
fossil fuels to clean energy sources and that otherwise contribute to a
safe climate.
The Chesapeake Climate Action Network (CCAN) is a
nonprofit organization dedicated to fighting climate change and
addressing the harms caused by fossil-fuel infrastructure in Maryland,
Virginia, and Washington, D.C., and to securing policies that will put
the world on a path to climate stability.
The Union of Concerned Scientists (UCS) is a national non-
profit organization that puts rigorous, independent science to work to
solve our planet's most pressing problems. The organization combines
technical analysis and effective advocacy to create innovative, practical
solutions for a healthy, safe, and sustainable future.
3
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 13 of 48
Amici submit this brief because they understand that the conduct
at the core of the Plaintiff-Appellee's Complaint is that the Defendants
affirmatively and knowingly concealed and denied the hazards that
they knew would result from the normal use of their fossil fuel products
by misrepresenting those products and deliberately discrediting
scientific information related to climate change. As such, it is critical to
the ultimate outcome of this appeal that full documentation of these
misrepresentations is available to the Court as it considers the
arguments and claims made by Defendants-Appellants and their
supporting amicus, the U.S. Chamber of Commerce.
All parties have consented to the filing of this brief. No party's
counsel authored the brief in whole or in part, no party or party's
counsel contributed money that was intended to fund preparing of
submitting the brief, and no person other than amici or their counsel
contributed money that was intended to fund preparing or submitting
the brief.
4
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 14 of 48
I. INTRODUCTION
At least fifty years ago, Defendants-Appellants (hereinafter,
"Defendants") had information from their own internal research, as well
as from the international scientific community, that the unabated
extraction, production, promotion, and sale of their fossil fuel products
would result in material dangers to the public. Defendants failed to
disclose this information or take steps to protect the public. Instead,
they acted to conceal their knowledge and discredit climate science,
running misleading nationwide marketing campaigns and funding
scientists and third-party organizations to exaggerate scientific
uncertainty and promote contrarian theories, in direct contradiction to
their own research and actions taken to protect their assets from
climate change impacts.
Defendants' coordinated, multi-front effort, demonstrated by their
own documents and actions, justifies the state common-law claims
Plaintiff-Appellee (hereinafter "Plaintiff") has made. As early as the
late 1950s and no later than 1968, Defendants had actual knowledge of
the risks associated with their fossil fuel products. In the decades that
followed, Defendants took affirmative steps to sow uncertainty, in part
5
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 15 of 48
by funding contrarian science that advanced alternative theories.
While they told the world there was no reason for concern, Defendants
took climate risks into account in managing their infrastructure, for
example, by raising the level of their oil rigs to account for rising sea
levels. In doing so, Defendants created the nuisance Plaintiff alleges,
and therefore should be held liable.
II. DEFENDANTS HAD ACTUAL KNOWLEDGE OF THE
RISKS ASSOCIATED WITH THEIR FOSSIL FUEL
PRODUCTS
A. Defendants had early knowledge that fossil fuel
products were causing an increase in atmospheric
CO2 concentrations, and that this increase could
result in "catastrophic" consequences.
Defendants knew decades ago of the potential risks associated
with their products, independently and through their membership and
involvement in trade associations such as American Petroleum Institute
(API), American Fuel & Petrochemical Manufacturers, and Western
States Petroleum Association.
API was aware of research on carbon dioxide as early as 1954. At
that time, Harrison Brown and other scientists at the California
Institute of Technology measured and assessed increased CO2
6
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 16 of 48
concentrations in the atmosphere.1 Although the results were not
published, API and other researchers within the petroleum industry
were aware of this research.2 In 1957, Roger Revelle and Hans Suess at
the Scripps Institute of Oceanography published a paper, in which they
predicted large increases in atmospheric CO2 if fossil fuel production
continued unabated.3 Shortly after, H.R. Brannon of Humble Oil (now
ExxonMobil) published research on the same question. His conclusions
were in "excellent agreement" with Brown's findings: fossil fuel
combustion caused an increase in atmospheric CO2.4
In 1959, physicist Edward Teller delivered the earliest known
warning of the dangers of global warming to the petroleum industry, at
a symposium held at Columbia University to celebrate the 100th
1 Benjamin Franta, Early oil industry knowledge of CO2 and global
warming, 8 Nature Climate Change 1024 (Nov. 19, 2018),
https://www.nature.com/articles/s41558-018-0349-9.
2 Id.
3 Roger Revelle and Hans Suess, Carbon Dioxide Exchange Between
Atmosphere and Ocean and the Question of an Increase of Atmospheric
CO2 during the Past Decades, 9 Tellus 18 (1957),
http://www.tandfonline.com/doi/pdf/10.3402/tellusa.v9i1.9075?needAcc
ess=true.
4 H.R. Brannon, A.C. Daughtry, D. Perry, W.W. Whitaker, and M.
Williams, Radiocarbon evidence on the dilution of atmospheric and
oceanic carbon by carbon from fossil fuels, 38 Trans. Am. Geophys.
Union 643 (Oct. 1957).
7
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 17 of 48
anniversary of the industry. Teller described the need to find energy
sources other than fossil fuels to mitigate these dangers, stating, "a
temperature rise corresponding to a 10 per cent increase in carbon
dioxide will be sufficient to melt the icecap and submerge New York.
All the coastal cities would be covered, and since a considerable
percentage of the human race lives in coastal regions, I think that this
chemical contamination is more serious than most people tend to
believe."5
Then in 1965, API President Frank Ikard delivered a presentation
at the organization's annual meeting. Ikard informed API's
membership that President Johnson's Science Advisory Committee had
predicted that fossil fuels could cause significant climatic changes by
the end of the century.6 He issued the following warning about the
consequences of CO2 pollution to industry leaders:
This report unquestionably will fan emotions, raise fears,
and bring demands for action. The substance of the report is
that there is still time to save the world's peoples from the
5 Edward Teller, Energy patterns of the future, 38 Energy and Man: A
Symposium 53, 58 (1960).
6 Frank Ikard, Meeting the challenges of 1966, Proceedings of the
American Petroleum Institute 12-15 (1965),
http://www.climatefiles.com/trade-group/american-petroleum-
institute/1965-api-president-meeting-the-challenges-of-1966/.
8
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 18 of 48
catastrophic consequence of pollution, but time is running
out.7
Over the next few years, scientific research continued to bolster
the conclusion that the combustion of fossil fuels would be the primary
driver of climate change. A 1968 Stanford Research Institute (SRI)
report--commissioned by API and distributed to its board members and
made available to API's members--warned that "rising levels of CO2
would likely result in rising global temperatures and that, if
temperatures increased significantly, the result could be melting ice
caps, rising sea levels, warming oceans, and serious environmental
damage on a global scale."8 The scientists acknowledged that burning
of fossil fuels provided the best explanation for an increase in CO2.9
In 1969, API commissioned a supplemental report by SRI that
provided a more detailed assessment on CO2. The report stated that
atmospheric concentrations of CO2 were steadily increasing, 90% of this
7 Id. at 13.
8 Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big
Oil Accountable for the Climate Crisis, Center for International
Environmental Law 12 (Nov. 2017), https://www.ciel.org/wp-
content/uploads/2017/11/Smoke-Fumes-FINAL.pdf.
9 Elmer Robinson and R.C. Robbins, Sources, Abundance, and Fate of
Gaseous Atmospheric Pollutants, Stanford Research Institute 3 (1968),
https://www.smokeandfumes.org/documents/document16.
9
USCA4 Appeal: 19-1644 Doc: 95-1 Filed: 09/03/2019 Pg: 19 of 48
increase could be attributed to fossil fuel combustion, and continued use
of fossil fuels would result in further increases of CO2 levels in the
atmosphere.10 The report projected that based on current fuel usage,
atmospheric CO2 concentrations would reach 370 ppm by 2000--exactly
what came to pass.11 All of this research was summarized and shared
with API members, including Defendants.12
A 1977 presentation and 1978 briefing by senior Exxon scientist
James F. Black warned the Exxon Corporation Management Committee
that CO2 concentrations were building in the Earth's atmosphere at an
increasing rate, that CO2 emissions were attributable to fossil fuels, and
that CO2 would contribute to global warming.13 Speaking to the
emerging scientific consensus on climate change at the time, Black
acknowledged that there was general scientific agreement that carbon
10 Smoke and Fumes, supra note 8, at 12.
11 Global Mean CO2 Mixing Ratios (ppm): Observations, NASA Goddard
Institute for Space Studies,
https://data.giss.nasa.gov/modelforce/ghgases/Fig1A.ext.txt (last
visited Jan. 25, 2019).
12 Environmental Research, A Status Report, American Petroleum
Institute (Jan. 1972), http://files.eric.ed.gov/fulltext/ED066339.pdf.
13 Memo from J.F. Black to F.G. Turpin re The Greenhouse Effect,
Exxon Research and Engineering Company 3 (June 6, 1978),
http://www.climatefiles.com/exxonmobil/1978-exxon-memo-on-
greenhouse-effect-for-exxon-corporation-management-committee/.
10
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dioxide released from the burning of fossil fuels was likely influencing
global climate, and stated:
Present thinking holds that man has a time window of five
to ten years before the need for hard decisions regarding
changes in energy strategies might become critical.14
Black expressed no uncertainty as to whether the burning of fossil
fuels would cause climate change. Former Exxon scientist, Ed Garvey,
described the situation as follows: "By the late 1970s, global warming
was no longer speculative."15 In another interview, Garvey added: "The
issue was not were we going to have a problem, the issue was simply
how soon and how fast and how bad was it going to be. Not if."16
In sum, through the 1950s and 1960s, there was agreement
among industry, government, and academic scientists that the observed
increase in CO2 concentrations, caused by fossil fuel combustion,
would likely cause an increase in average global temperatures, and
14 Id. at 3.
15 James Osborne, INTERVIEW: Former Exxon scientist on oil giant's
1970s climate change research, Dallas News (Oct. 2015),
https://www.dallasnews.com/business/business/2015/10/02/interview-
former-exxon-scientist-on-oil-giants-1970s-climate-change-research.
16 Amy Westervelt, Drilled: A True Crime Podcast about Climate
Change, Episode 1, The Bell Labs of Energy (interview with Ed Garvey
at 11:10) (Nov. 14, 2018), https://www.criticalfrequency.org/drilled.
11
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therefore a variety of climate-related impacts. By the late 1970s, there
was general consensus that this would occur.
B. Defendants conducted their own climate science
research that confirmed fossil fuel combustion was
increasing atmospheric carbon dioxide
concentrations and that this would affect the climate.
From the late 1970s through early 1980s, Defendants repeatedly
confirmed the findings of leading scientists and institutions studying
climate change with their own research.17
Exxon, in particular, became active in the growing field of climate
science. Following warnings by Black and others, Exxon launched an
ambitious research program to study the environmental effects of
greenhouse gases. The company assembled a team of scientists,
modelers, and mathematicians to deepen the company's understanding
of an environmental problem that posed an existential threat to its
business interests.18 As Exxon senior scientist Morrel Cohen explained:
17 Between 1983-84, Exxon's researchers published their results in at
least three peer-reviewed papers in the Journal of the Atmospheric
Sciences and American Geophysical Union. A list of "Exxon Mobil
Contributed Publications" from 1983-2014 is available at:
https://cdn.exxonmobil.com/~/media/global/files/energy-and-
environment/climate_peer_reviewed_publications_1980s_forward.pdf.
18 Geoffrey Supran and Naomi Oreskes, Assessing ExxonMobil's climate
change communications (19772014), 12(8) Environmental Research
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"Exxon was trying to become a research power in the energy industry
the way the Bell Labs was in the communications industry."19 By 1982,
Exxon's scientists, in collaboration with other industry scientists, had
created climate models that confirmed the scientific consensus that the
continued increase of CO2 from fossil fuels would cause significant
global warming by the middle of the 21st century with "potentially
catastrophic" effects, and communicated these findings internally.20
In 1979, W.L. Ferrall described the findings of an internal Exxon
study, concluding that the "increase [in CO2 concentration] is due to
fossil fuel combustion," "[i]ncreasing CO2 concentration will cause a
warming of the earth's surface," and the "present trend of fossil fuel
consumption will cause dramatic environmental effects before the year
Letters 084019 (Aug. 23, 2017),
http://iopscience.iop.org/article/10.1088/1748-9326/aa815f.
19 Westervelt, supra note 16 (interview with Morrell Cohen at 6:21); see
also John Walsh, Exxon Builds on Basic Research, 225 Science 1001
(1984), https://www.documentcloud.org/documents/5690867-1984-
Walsh-Exxon-Builds-on-Basic-Reseach.html.
20 See, e.g., Memo from M.B. Glaser to Exxon Management re CO2
"Greenhouse" Effect, Exxon Research and Engineering Company 11
(Nov. 12, 1982),
http://insideclimatenews.org/sites/default/files/documents/1982%20Exx
on%20Primer%20on%20CO2%20Greenhouse%20Effect.pdf.
13
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2050."21 With a doubling of CO2 concentration (using 1860 as a
baseline), Ferrall predicted that "ocean levels would rise four feet" and
the "Arctic Ocean would be ice free for at least six months each year,
causing major shifts in weather patterns in the northern hemisphere."22
A 1980 presentation by Dr. John Laurman to the API Task Force
on "The CO2 Problem" identified the "scientific consensus on the
potential for large future climatic response to increased CO2 levels" as a
reason for concern, and stated that there was "strong empirical
evidence" that climate change was caused by fossil fuel combustion.23
Laurman also warned the API Task Force that foreseeable temperature
increases could have "major economic consequences" and "globally
catastrophic effects."24
21 Memo from W.L. Ferrall to R.L. Hirsch re "Controlling Atmospheric
CO2", Exxon Research and Engineering Company 1 (Oct. 16, 1979),
http://insideclimatenews.org/sites/default/files/documents/CO2%20and
%20Fuel%20Use%20Projections.pdf.
22 Id., Appendix A at 1.
23 AQ-9 Task Force Meeting Minutes, American Petroleum Institute,
Attachment B at 1-2 (Mar. 18, 1980),
https://insideclimatenews.org/sites/default/files/documents/AQ-
9%20Task%20Force%20Meeting%20%281980%29.pdf.
24 Id., Attachment B at 5.
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By 1981, Exxon had internally acknowledged the risks of climate
change and the role fossil fuel combustion played in increasing CO2
concentrations in the atmosphere. In an internal memorandum
outlining Exxon's position on the CO2 greenhouse effect, Exxon scientist
Henry Shaw wrote that a doubling of CO2 would result in 3°C increase
in average global temperature and 10°C increase at the poles, causing
major shifts in rainfall/agriculture and melting of polar ice.25 Also in
1981, Roger Cohen, director of Exxon's Theoretical and Mathematical
Sciences Laboratory, warned that "we will unambiguously recognize the
threat by the year 2000 because of advances in climate modeling and
the beginning of real experimental confirmation of the CO2 effect."26 He
further stated, "it is distinctly possible that [Exxon Planning Division's]
scenario will later produce effects which will indeed be catastrophic (at
least for a substantial fraction of the earth's population)."27
25 Memo from Henry Shaw to Dr. E.E. David, Jr. re "CO2 Position
Statement", Exxon Inter-Office Correspondence 2 (May 15, 1981),
https://insideclimatenews.org/sites/default/files/documents/Exxon%20P
osition%20on%20CO2%20%281981%29.pdf.
26 Memo from R.W. Cohen to W. Glass re possible "catastrophic" effect of
CO2, Exxon Corporation 1 (Aug. 18, 1981),
http://www.climatefiles.com/exxonmobil/1981-exxon-memo-on-possible-
emission-consequences-of-fossil-fuel-consumption.
27 Id.
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In 1982, Cohen summarized the findings of Exxon's research in
climate modeling, stating that "over the past several years a clear
scientific consensus has emerged regarding the expected climatic effects
of increased atmospheric CO2." (emphasis added)28 Cohen
acknowledged that Exxon shared the views of the mainstream science
community, stating that there is "unanimous agreement in the scientific
community that a temperature increase of this magnitude would bring
about significant changes in the earth's climate," and that Exxon's
findings were "consistent with the published predictions of more
complex climate models" and "in accord with the scientific consensus on
the effect of increased atmospheric CO2 on climate."29
Industry documents from the 1980s provide further evidence that
Exxon and other Defendants internally acknowledged that the threat of
climate change was real, it was caused by fossil fuels, and it would have
significant impacts on the environment and human health. Notably, a
1982 corporate primer--circulated internally to Exxon management--
28 Memo from R. W. Cohen to A.M. Natkin, Exxon Research and
Engineering Company 1 (Sept. 2, 1982),
http://www.climatefiles.com/exxonmobil/1982-exxon-memo-
summarizing-climate-modeling-and-co2-greenhouse-effect-research/.
29 Id. at 2.
16
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recognized the need for "major reductions in fossil fuel combustion" as a
means to mitigate global warming. In the absence of such reductions,
"there are some potentially catastrophic events that must be considered
. . . [O]nce the effects are measurable, they might not be reversible . . ."30
The 1982 Exxon primer predicted a doubling of CO2
concentrations (above pre-industrial levels) by 2060 and increased
temperatures of 2-4°C (above 1982 levels) by the end of the 21st
century. It also provided a detailed assessment of the "potentially
catastrophic" impacts of global warming, including primary impacts on
physical and biological systems and secondary impacts (e.g. migration,
famine).31
A 1988 report by Shell's Greenhouse Effect Working Group issued
similar internal warnings to those of Exxon. The report stated that "by
the time the global warming becomes detectable it could be too late to
take effective countermeasures to reduce the effects or even to stabilise
the situation."32 Acknowledging the need to consider policy changes,
30 Memo from M.B. Glaser to Exxon Management re CO2 "Greenhouse"
Effect, supra note 20, at 2 and 11.
31 Id. at 12-14.
32 R.P.W.M Jacobs et al., The Greenhouse Effect, Shell Internationale
Petroleum Maatschappij B.V., The Hague 1 (May 1988),
17
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the report observed that "the potential implications for the world are . . .
so large that policy options need to be considered much earlier" and that
research should be "directed more to the analysis of policy and energy
options than to studies of what we will be facing exactly."33
The Shell report made detailed projections of harmful impacts of
global warming. It noted that warming could cause the melting of the
West Antarctic Ice Sheet, which could result in sea level rise of 5-6
meters. It also predicted the "disappearance of specific ecosystems or
habitat destruction" and an increase in "runoff, destructive floods, and
inundation of low-lying farmland."34
In the 1970s and 1980s, Defendants pursued cutting-edge
research and amassed considerable data on climate change. This body
of research confirmed their earlier knowledge, and led to the undeniable
conclusion that continued fossil fuel production and use would lead to
https://www.documentcloud.org/documents/4411090-
Document3.html#document/p9/a411239.
33 Id.
34 Benjamin Franta, Shell and Exxon's secret 1980s climate change
warnings, The Guardian (Sept. 19, 2018),
https://www.theguardian.com/environment/climate-consensus-97-per-
cent/2018/sep/19/shell-and-exxons-secret-1980s-climate-change-
warnings (citing The Greenhouse Effect, Shell International).
18
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irreversible and catastrophic climate change. Armed with this
information, Defendants were at a turning point in the early 1980s.
III. DEFENDANTS TOOK PROACTIVE STEPS TO CONCEAL
THEIR KNOWLEDGE AND DISCREDIT CLIMATE
SCIENCE
Despite acknowledging that an increasing level of atmospheric
CO2 due to fossil fuel burning posed a considerable threat to the planet,
Defendants decided against taking steps to prevent climate change.
Instead, they did the opposite--by ending funding for major climate
research and launching campaigns to discredit climate science and
delay actions perceived as contrary to their business interests.35
Defendants engaged in multiple efforts to carry out these campaigns:
(1) developing public relations strategies that contradicted their own
knowledge and scientific insights, (2) engaging in public
communications campaigns to promote doubt and downplay the threats
of climate change, and (3) funding individuals, organizations, and
35 Memo from A.M. Natkin to H.N. Weinberg re CRL/CO2 Greenhouse
Program, Exxon Corporation 1 (June 18, 1982),
http://insideclimatenews.org/sites/default/files/documents/Budget%20C
utting%20Memo%20(1982).pdf.
19
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research that sought to discredit the growing body of publicly available
climate science.
A. Defendants developed sophisticated public relations
strategies to deny the risks of climate change and
create doubt about the scientific consensus of global
warming.
Defendants responded to public policy efforts to address the
dangers of their products by concealing and denying the known
hazards, in contradiction to earlier internal acknowledgments and
statements made by industry scientists and executives.
In a 1988 internal memo, Exxon acknowledged that atmospheric
CO2 concentrations were increasing and could double in 100 years, that
the combustion of fossil fuels was emitting five billion gigatons of CO2
per year, and that the "[g]reenhouse effect may be one of the most
significant environmental issues for the 1990s."36 But in this same
memo, Exxon identified that its position would be to "[e]mphasize the
uncertainty in scientific conclusions regarding the potential enhanced
Greenhouse effect[.]"37
36 Memo from Joseph Carlson to DGL re The Greenhouse Effect 2 (Aug.
3, 1988), http://www.climatefiles.com/exxonmobil/566/.
37 Id. at 7.
20
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Shell followed suit in emphasizing uncertainty in climate science.
In contrast to Shell's 1988 report that recommended the prompt
consideration of policy solutions, a 1994 internal report focused on
scientific uncertainty, noting that "the postulated link between any
observed temperature rise and human activities has to be seen in
relation to natural variability, which is still largely unpredictable."38
Shell asserted that "[s]cientific uncertainty and the evolution of energy
systems indicate that policies to curb greenhouse gas emissions beyond
`no regrets' measures could be premature, divert resources from more
pressing needs and further distort markets."39
Industry associations and groups, such as the Global Climate
Coalition (GCC), exerted significant influence on their members, inter
alia, through communications strategies. Established in 1989, the GCC
identified itself as "an organization of business trade associations and
private companies . . . to coordinate business participation in the
38 P. Langcake, The Enhanced Greenhouse Effect: A Review of the
Scientific Aspects, Shell Internationale Petroleum Maatschappij B.V.
(Dec. 1994), https://www.documentcloud.org/documents/4411099-
Document11.html#document/p15/a411511.
39 Id.
21
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scientific and policy debate on the global climate change issue"40--but in
effect, the group opposed greenhouse gas regulation through lobbying,
funding of front groups, denial and disinformation campaigns, and
other tactics.
In 1993, the GCC hired the public relations firm E. Bruce
Harrison to develop and execute a communications plan,41 which was
implemented by the API, National Association of Manufacturers,
Chamber of Commerce, and other trade associations/coalitions (of which
Defendants were members). Some of the central elements of this plan
were to accentuate the economic costs of mitigation and to cast
uncertainty over the science.42
In 1996, following publication of the Intergovernmental Panel on
Climate Change's Second Assessment Report, the GCC developed a
40 Global Climate Coalition: An Overview, Global Climate Coalition 1
(Nov. 1996), http://www.climatefiles.com/denial-groups/global-climate-
coalition-collection/1996-global-climate-coalition-overview/.
41 O'Dwyer's Directory of Public Relations Firms, J.R. O'Dwyer Co., New
York, NY (1995), at 85.
42 See, e.g., Benjamin Franta, Trump pulled out the oil industry
playbook and players for Paris, The Guardian (July 26, 2017),
https://www.theguardian.com/environment/climate-consensus-97-per-
cent/2017/jul/26/trump-pulled-out-the-oil-industry-playbook-and-
players-for-paris
22
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primer that provided an overview of the group's position on climate
change. While acknowledging that global warming was happening, the
GCC claimed that there was significant uncertainty as to its cause:
The GCC believes that the preponderance of the evidence
indicates that most, if not all, of the observed warming is
part of a natural warming trend which began approximately
400 years ago. If there is an anthropogenic component to
this observed warming, the GCC believes that it must be
very small and must be superimposed on a much larger
natural warming trend.43
This statement not only stands in contradiction to the internal
memos and peer-reviewed papers published by Defendants' own
scientists but also to the final internal draft of the GCC primer itself,
which stated that the "scientific basis for the Greenhouse Effect and the
potential impacts of human emissions of greenhouse gases such as CO2
on climate is well established and cannot be denied."44 This language
was removed before final publication. The final draft also included a
section discussing how contrarian theories failed to "offer convincing
43 Global Climate Coalition: An Overview, supra note 40, at 2.
44 Memo from Gregory J. Dana to AIAM Technical Committee re Global
Climate Coalition (GCC) Primer on Climate Change Science Final
Draft, Association of International Automobile Manufacturers 5 (Jan.
18, 1996), http://www.climatefiles.com/denial-groups/global-climate-
coalition-collection/global-climate-coalition-draft-primer/.
23
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arguments against the conventional model of greenhouse gas emission-
induced climate change."45 This section was also removed by the GCC
before final publication.
As their memoranda and statements show, Defendants undertook
a deliberate shift away from their prior research efforts to the strategy
of uncertainty and delay.
B. Defendants engaged in public communications
campaigns designed to manufacture doubt and
downplay the threats of climate change.
Communications efforts aimed at the general public were a key
part of Defendants' strategy. Defendants, individually and through
their membership in trade associations, launched campaigns that
directly contradicted earlier statements recognizing a general consensus
on climate change and the magnitude of its effects.
For example, in 1996, Exxon issued a publication titled "Global
warming: who's right? Facts about a debate that's turned up more
questions than answers," in which Exxon CEO Lee Raymond stated
that "taking drastic action immediately is unnecessary since many
scientists agree there's ample time to better understand climate
45 Id.
24
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systems . . ."46 The publication characterized the greenhouse effect as
"unquestionably real and definitely a good thing," and as "what makes
the earth's atmosphere livable." Directly contradicting the company's
internal reports and peer-reviewed science, the publication attributed
the increase in global temperature to "natural fluctuations that occur
over long periods of time" rather than to anthropogenic sources.47
Also in 1996, API published a book titled "Reinventing Energy:
Making the Right Choices," which stated that "there is no persuasive
basis for forcing Americans to dramatically change their lifestyles to use
less oil." 48 The book denied the human connection to climate change,
stating that no "scientific evidence exists that human activities are
significantly affecting sea levels, rainfall, surface temperatures or the
intensity and frequency of storms."49 In 1997, Lee Raymond expressed
46 Global warming: who's right? Facts about a debate that's turned up
more questions than answers, Exxon Corporation 5 (1996),
http://www.climatefiles.com/exxonmobil/global-warming-who-is-right-
1996/.
47 Id.
48 Sally Brain Gentille et al., Reinventing Energy: Making the Right
Choices, American Petroleum Institute 77 (1996),
http://www.climatefiles.com/trade-group/american-petroleum-
institute/1996-reinventing-energy/.
49 Id.
25
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support for these views. In a speech presented at the World Petroleum
Congress at which many Defendants were present, Raymond presented
a false dichotomy between stable energy markets and reduction in the
marketing, promotion and sale of fossil fuel products known to
Defendants to be hazardous.50
In addition to these public statements, Defendants developed,
implemented and/or funded public affairs programs, aiming to shift
"America's social consciousness" by targeting specific people or groups
with messages designed for them.51 From 1972 through 2014, Mobil
and ExxonMobil ran advertorials (paid advertisements styled like
editorials) in The New York Times and other national newspapers.52
They bought these advertorials to allow the "public to know where
50 Lee R. Raymond, Energy Key to growth and a better environment for
Asia-Pacific nations, World Petroleum Congress 5 (Oct. 13, 1997),
https://assets.documentcloud.org/documents/2840902/1997-Lee-
Raymond-Speech-at-China-World-Petroleum.pdf.
51 See, e.g., Evolution of Mobil's Public Affairs Programs 1970-81, Mobil
2, https://www.documentcloud.org/documents/5396414-Reduced-
Evolution-of-Mobil-Public-Affairs-Program.html (last visited Jan. 25,
2019).
52 Exxon and Mobil Ads, Polluter Watch, http://polluterwatch.org/exxon-
and-mobil-ads (last visited Jan. 25, 2019).
26
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[they] stand" on climate change and other issues.53 In an internal
assessment of its advertorial campaign, Mobil concluded that the Times
had "altered or significantly softened its viewpoints on: conservation;
monopoly and divestiture; decontrol; natural gas; coal; offshore drilling;
and gasohol."54
In a peer-reviewed study, Dr. Supran and Dr. Oreskes compared
ExxonMobil's internal and peer-reviewed scientific papers to its non-
peer-reviewed external public communications (including 36 Times
advertorials from 1989 to 2004), finding a stark contrast between the
way that the two sets of documents characterized climate change. Dr.
Supran and Dr. Oreskes found that 83% of peer-reviewed papers and
80% of internal documents acknowledged that climate change is real
and human-caused, yet only 12% of advertorials did so, with 81%
instead expressing doubt.55
53 Mobil, CNN and the value of instant replay, New York Times (Oct. 16,
1997), http://www.documentcloud.org/documents/705559-mob-nyt-
1997-oct-16-cnnslam.html.
54 Mobil, Op-Ed Impact Study: A Comparative Analysis of Energy
Viewpoints in The Op-Ed Advertisements and The New York Times
Editorials, 1970-1980 (on file).
55 Supran and Oreskes, supra note 18, at 1.
27
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Similarly, an industry-funded organization called the Information
Council on the Environment (ICE)--formed and supported by affiliates,
predecessors, and/or subsidiaries of Defendants--launched a national
climate denial campaign.56 ICE's primary strategy was to "reposition
global warming as theory (not fact),"57 a clear acknowledgement that
global warming had previously been positioned and accepted as fact
within the scientific community.
In 1996, API created the Global Climate Science Communications
Team (GCSCT), a small group of prominent representatives of fossil
fuel companies, public relations firms, and industry front groups with
the mission of undermining the global scientific consensus that climate
change was real and human-caused. In 1998, after the Kyoto Protocol
56 Among others, members included: Western Fuels Association,
National Coal Association, Edison Electric Institute, Island Creek Coal
Company (subsidiary of Occidental Petroleum), Peabody Coal
Company, and Pittsburgh and Midway Coal Mining (subsidiary of
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