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Could $200 Billion Tobacco-Type Settlement Be Coming Over ‘Climate Change?’

June 14, 2016, 8:54 PM

At the Big Law Business Summit last week, New York State Attorney General Eric Schneiderman ripped into Exxon Mobil for its stance on climate change.

Schneiderman accused Exxon of glossing over the risks that climate change poses to its core businesses in its public securities statements, and then couching its disclosure as first amendment protected.

“The first amendment doesn’t protect fraud – it doesn’t protect fraudulent speech,” he said.

This weekend, the Houston Chronicle published its investigation of the brewing legal threats that energy companies face as a result of their disclosures on climate change, comparing it to the situation tobacco companies faced in the late 1990s over their disclosures about the dangers of smoking.

In 1998, attorneys general from 46 states struck a $200 billion settlement with tobacco companies, ending years of litigation about whether they mislead smokers about the health risks of their products.

Now, there are 17 state attorneys general including Schneiderman investigating whether fossil fuel companies mislead investors in public disclosures about the risks associated with climate change.

Big law firms have been sending client alerts to energy companies, warning that a storm is brewing, according to the Chron , which quoted an email sent by lawyers at Pillsbury Winthrop Shaw Pittman: “There is escalating effort to bring pressure to bear on companies with respect to their public securities statements on the effects of climate change.”

It noted the alerts picked up in April after a federal judge in Oregon allowed the environmental advocacy group Our Children’s Trust to proceed with a case against the U.S. government, arguing future generations are at risk as long as burning fossil fuels is permitted. It is but one of a handful of legal strategies that environmentalists are pursuing: Other suits have targeted energy firms for ignoring the potential effects on climate change in developing company policy.

The article quotes Bracewell’s Kevin Ewing as a skeptic about such lawsuits, saying it’s impossible to connect an individual company’s conduct with specific harm. Exxon was not immediately available to provide comment.

“If you look at the history of tobacco litigation through the first several decades, the result was always the same. The plaintiff always lost,” said Carroll Muffett, president of the Center for International Environmental Law told the Chron. “With each new case, more information came to public light. And that’s what we’re seeing here.”

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