Not long ago, lawsuits were filed against cigarette companies for all the suffering caused by smoking, saying tobacco executives fully knew their product was a killer when they hired shill experts to testify and report that there wasn’t a clear connection between smoking and lung cancer. A leaked tobacco company memo pushing “Doubt is our Product” was a key bit of evidence in those complaints, but industry efforts to hoodwink the general public were arguably ineffective since a slang term for cigarettes had been “coffin nails” for multiple decades. Meanwhile, someone in the enviro-activist community decided to apply that same kind of complaint to high-level global warming nuisance lawsuits. Guess who and what is connected in a questionable manner to those cases?
The API [American Petroleum Institute] and other Oil Company Defendants have engaged in concerted financial activity far in excess of $1 million in furtherance of a tortious civil conspiracy to “reposition global warming as theory rather than fact.”
Over the past decade, coal and oil interests have funneled more than $1 million to about a dozen individual global-warming skeptics as part of an effort to “reposition global warming as theory rather than fact,” according to industry memos first uncovered by former Boston Globe journalist Ross Gelbspan.
‘Oil interests’ and the “reposition global warming” phrase is as close as the article ever gets to what is said in the Comer v. Murphy document, the article never directly mentions the API. As shown in my timeline history for the “reposition global warming” phrase, the article erroneously claims Gelbspan was the first to uncover those old Western Fuels ICE PR campaign memos.
Then we have the Kivalina v. ExxonMobil Corp., et al. (February 26, 2008) lawsuit, apparently primarily handled by attorney Matt Pawa. Its pages 48-49 states:
Another front-group formed by industry was called the “Information Council on the Environment” (“ICE”), which was formed by Defendant Southern Company along with EEI, the Western Fuels Association, and the National Coal Association. ICE undertook radio advertising blitzes and mass mailings that attacked the proponents of global warming … Internal documents from ICE revealed that the goal was to “reposition global warming as theory” not fact and was designed to target “older, less educated males…” and “younger, lower-income women.” It sought to attack messengers on global warming as a way to falsely discredit the science and enable Southern and the electric utility industry in general to continue to contribute to the public nuisance alleged herein. …
The Kivalina v. Exxon footnote #64 for that passage says this:
Bob Burton & Sheldon Rampton, Thinking Globally, Acting Locally: The International Conspiracy to Overheat the Earth, PR Watch Newsletter, 1997,
http://www.prwatch.org/prwissues/1997Q4/warming.html; Mathew Wald, Pro-Coal Ad Campaign Disputes Warming Idea, N.Y. Times, July 8, 1991, D2.
Asides: Those might look like solid references at first glance, but after deeper scrutiny, they appear to be significantly damaging. Who did Burton & Rampton cite at the bottom of their article (full text here) which repeated the “reposition global warming” phrase? Ross Gelbspan and two others; the Environmental Working Group’s CLEAR report, and Sharon Beder, where EWG cites both Gelbspan and the old Ozone Action environmentalist group for the phrase, while Beder just cites Ozone Action. Both Gelbspan and Ozone Action jointly claim they ‘obtained’ the documents with that phrase in it, but nobody has ever proved that phrase was the top-down sinister directive they portrayed it to be.
• Kivalina‘s reference to Matt Wald’s NY Times article is inexplicable. Wald quoted an official involved in the ICE campaign who said, in regard to a specific proposal supposedly tied to the campaign, that its suggestions were unsolicited and not followed. Gelbspan offers a variant of that ‘not followed’ statement, but with this twist: “An official of the campaign denies that strategy of targeting selected groups was ever implemented.” The ‘targeting’ he speaks of being surrounded by parts of the leaked memo statements the NYT article quoted. Remember, this unimplemented memo set is the one Al Gore said Gelbspan discovered, even though Gore quoted from the set years before Gelbspan first mentioned anything from them. Worse for everyone, if this unsolicited/not followed proposal was never part of the implemented ICE campaign and not seen after its rejection, then it wouldn’t be believable evidence of a sinister industry-wide misinformation effort.
• Kivalina‘s assertion about ‘radio advertising blitzes and mass mailings’ is questionable, considering the dicey matter of what newspaper ads actually appeared in the three small city markets in which the ICE pilot project PR campaign took place.
Now, for the third global warming nuisance lawsuit connection: Matt Pawa was also one of the primary attorneys for the land trusts plaintiffs’ side of the Connecticut v American Electric Power case. American Electric Power was among the Kivalina case defendants.
That connection unfolds this way: Pawa was one of the defending attorneys (full text here) in the Western Fuels Association v. Turning Point Project lawsuit in which Western Fuels sued environmentalist groups in 2000 – including Ozone Action – for commercial defamation. Western Fuels was the creator of the 1991 ICE test market PR campaign.
Pawa’s Ozone Action connection continues with a PDF file link at his own web site (also cited at SourceWatch.org’s, reference #6, a web site Sheldon Rampton created* [5/20/16 Author’s Addition: Seems Sheldon Rampton has since discarded his old elaborate portfolio page at the current iteration of his personal site. No matter, it is archived here and screencaptured here and here where his thumbnails generate images properly], the same Sheldon Rampton which the Kivalina case cited as a source for the “reposition global warming” phrase). Pawa’s link is to a July, 2000 Corporate Legal Times article which had a plausible inspiration for Pawa from an Ozone Action worker in its last four sentences:
Attorney David B. Hunter, executive director of the Center for International Environmental Law in Washington D.C., and a board member of Ozone Action ….
“if one were building a [climate change] case, part of the evidence would be what company X was doing during the time when it should have been doing research on alternatives.”
You could argue, according to Hunter, that if a company were running a counter-propaganda campaign, or helping to finance one, it could be liable under tort theories.
“That would be my argument,” he says. “I hope to make it some day.”
Pawa beat Hunter to the opportunity only a year later in the formation of the Connecticut lawsuit, via a connection to the Natural Resources Defense Council. According to Pawa’s response in this interview article:
The Connecticut attorney generals office called me back in 2001; they had seen a memo I had written, outlining some initial thoughts on how this could be done, which NRDC had shared with them, and they were intrigued by it so they called me in for a meeting.
Connecticut Attorney General Richard Blumenthal conceived the case. Peter Lehner — now NRDC’s executive director — took the indispensable leadership role as assistant attorney general for New York. And Matt Pawa developed the winning legal theories as lead attorney.
However, in this Craig Segall / Environmental Law Institute interview, Segall gives the credit to Pawa on no uncertain terms, in a narrative of how his proximity to NRDC offices and his work on the Western Fuels case led him to form the Connecticut lawsuit:
Connecticut was designed to mobilize the old common-law doctrine of nuisance to allow suits directly against emitters. It was largely the vision of one man … Matt Pawa … there was a concrete idea of how to go about a lawsuit, conceptualized at about the same time by Pawa and by other people in the movement: use the public nuisance doctrine.
As in what Ozone Action’s David Hunter suggested about if a company were running or financing a counter-propaganda campaign, it could be liable for any resulting suffering. A March 13, 2008 US News & World Report article summed up Pawa’s Kivalina case perfectly,
As for nuisance suits, the Kivalina case differs from its predecessors, lawyers argue, because it models itself after the lawsuits against Big Tobacco in the 1990s that held cigarette manufacturers liable for hiding the health consequences of smoking. Likewise, the Kivalina suit alleges that energy companies conspired to create a false sense of doubt about effects of global warming.
The tobacco cases showed how cigarette companies knowingly withheld the hazards of tobacco from the public and spread misinformation through industry-paid front groups. The Kivalina suit alleges that energy companies created trade associations and think tanks to foster uncertainty about global warming, knowing, the suit claims, their information was inaccurate.
…. the suit cites internal documents from the Information Council on the Environment formed by the Southern Co., a major coal utility, and other coal interests showing that the council’s goal was to “reposition global warming as theory.”
All three cases are dead now, having withered away for legal reasons I don’t understand. But all three remain tied together via Ross Gelbspan’s favorite “reposition global warming” phrase in the Comer and Kivalina cases as their core source of evidence for industry corruption of skeptic climate scientists, and with the main attorney in Kivalina being the ‘founder’ of the Connecticut case while being closely tied to Ozone Action, the epicenter of the “reposition global warming” phrase when it first got its real media traction.
The total failure here is elemental: Nobody has ever proven energy companies knowingly fostered, fomented or deliberately fabricated uncertainty about global warming, nor has anyone proved the skeptic climate assessments cited by those energy companies is obviously inaccurate. Rather than being a ‘miscarriage of justice’ for people suffering from climate change, these global warming nuisance cases instead point to a situation where there seemingly was a deliberate coordinated effort made to destroy the credibility of skeptic climate scientists which relied on a single unsupportable evidence source. The real court case to consider here is whether that effort strayed into libel/slander territory.
The above post is largely an updated and altered version of the original I had at Breitbart.com in 2010, “Global Warming Nuisance Lawsuits Are Based on a Fatal Flaw”