Climate in the courtroom

01/02/2024

Fossil fuel companies may soon be forced to pay out billions for their role in the climate crisis. Trial lawyer Jeffrey B Simon tells Chris Seekings about his groundbreaking lawsuit in the US In June last year, a climate lawsuit was launched seeking nearly $52bn in damages from some of the world’s largest fossil fuel companies for their role in causing an unprecedented ‘heat dome’ event in Oregon that killed scores of people in 2021. Trial lawyer Jeffrey B Simon, who filed the lawsuit, alleged that companies including ExxonMobil, Shell and Chevron were responsible because of their role in driving climate change, and claimed that they “put out an enormous amount of disinformation so that their business activities and their wealth creation would not be interrupted”. He also made headlines in 2021 after winning an historic $2.75bn+ settlement with Johnson & Johnson and other pharmaceutical giants for opioid harm reduction in Texas. In his latest book, Last Rights: The Fight to Save the 7th Amendment, Simon explains how corporate interests have sought to undermine the US civil justice system and prevent citizens from holding big business to account for the damage they are doing to human health and the environment. Why is the Seventh Amendment in the US so important in the global fight against climate change? The Seventh Amendment is the right to trial by jury in any civil dispute worth more than $20. Our founders believed that those legal disputes should be resolved by common folk but, unfortunately, in recent years, powerful corporations have been very successful in compromising lawmakers with financial contributions and persuading them to pass laws that restrict the rights of people to access the jury system when they have legal disputes with big corporations that cause them harm. Could you give me an example of this? It really began when George W Bush was governor of Texas, and wanted to run for president. With his political strategist, Karl Rove, he championed laws for large industries such as gun manufacturers and tobacco and chemical companies, which would help immunise them from alleged wrongdoing – he became the tort reformer-in-chief. For example, in 2005, he passed a law which makes the gun industry essentially immune from civil liability from gun violence. At that time, we had a little over 100 million guns in the US for a population of just under 300 million. Now, we have a population of 330 million people, but more than 425 million guns. In your book, you argue that similar laws have been passed for fossil fuel companies to avoid accountability for climate change. What is happening with your climate lawsuit in Oregon? The defendants are carrying out a delay strategy, which we knew they would because they have done it in previous climate cases. They have attempted to move the case to federal court as they believe they’re more likely to get a better jury there, or avoid one altogether. However, last month, the Supreme Court allowed the state of Minnesota’s climate case to remain in state court. If we prevail in our efforts to return our case to state court, the defendants will file appeals of that ruling. After that appellate process is completed, the defendants will move to dismiss the case and argue that they don’t owe any legal duty to our clients in any respect. Their goal is to avoid a jury trial altogether, especially one in state court, or to delay facing a jury as long as possible. Large corporations also often look to impugn the civil justice system and the lawyers that represent claimants as being bad for business and therefore bad for the American economy. Those claims are empirically false and the theme itself is a scam intended to make polluting industries and reckless companies financially unaccountable for the harm they do. You’re seeking nearly $52bn in damages. How did you arrive at that figure? The heat event itself caused more than $50m in economic damages. What this county needs to do to prevent more loss of life from extreme heat events is invest in infrastructure to make it more heat resilient – essentially, adaptation. It’ll take more than $50bn to do it, but what we’ve asked the court to do is administer a fund, which is paid for by the defendants, to provide resources for adaptation. It will take many years to implement such a plan, and extreme heat events will occur in the interim. Therefore, we are seeking $50m in past damages, $1.5bn dollars in future damages, and $50bn for adaptation implementation. Some scientists are reluctant to attribute specific weather events to climate change. How do you intend to get around that in your evidence? Extreme heat is one of the impacts most attributable to carbon pollution based on existing science. Even before our clients contacted us, several peer-reviewed studies attributed this event to anthropogenic climate change. One of the studies said that the event would have been virtually impossible in the absence of carbon pollution; and another said that carbon pollution made it 150 times more likely. The science is particularly strong in relation to this event because extreme heat of this magnitude in the Pacific Northwest is totally anomalous and does not occur in the absence of carbon pollution affecting climate. Are there many other climate litigation cases being brought in the US? There are 40-50 climate accountability cases filed in the US on behalf of governmental entities. California filed one recently, which would suggest that we’ll see a lot more of them. What makes our case different is that most of these cases allege damages from climate change in a general sense, whereas ours is specifically about an extreme weather event. I believe it’s the only one that is about an extreme heat event. We’re right on the science, and we are confident that we can prove our core allegations. I think the case will have a big impact. You helped secure billions of dollars for Texas from pharmaceutical companies following the damage caused to victims of the opioid crisis. How did you get involved with that? Some years ago, when counties around Texas and other parts of the country were looking at whether their legal rights had been violated in relation to having to pay enormous sums of money for the opioid epidemic, my firm was one of the ones they consulted because we have done defective drug cases before and have represented large groups of people who have been harmed collectively. The oversupply of opioid drugs in America has caused enormous harm to individuals, families and communities. Opioid prescription drugs, like fossil fuel emissions, are federally regulated, but federal laws don’t immunise industries that mislead the public about the harmful impacts of what they’re selling or doing. In opioid litigation, drug company defendants claimed that our state law claims were pre-empted by the existence of federal regulations, but that argument failed. Over time, the prospect that our drug companies would face a jury persuaded them to think about settling – we have secured just shy of $2.8bn and are still pursing claims against other defendants. Oil company defendants in our climate case will, too, argue that state law claims are pre-empted by the existence of federal regulations, but I believe those contentions will fail, and those defendants will then have to consider how dimly a jury may view their business practices. You can order Last Rights here.