Feet To The Fire

Have you heard of a shell game? It’s an old one, dating back to at least Ancient Greece. A ball is placed under one of several cups or shells and then the cups are shuffled. All you have to do to win is guess where the ball is after the shuffle. Sounds simple, right? However in reality you almost always lose because the game is set up for you to fail. Con men running shell games use sleight of hand and misdirection to trick their targets and take their money.

Big Oil has been running its own shell game for decades, crying about how regulations and environmental protection policies are responsible for rising fuel costs while happily taking our money and netting record profits. Unfortunately for us the game they’re playing costs far more than a tank of gas. Drivers and non-drivers alike are on the hook for literally billions of dollars.

The devastating effects of climate change fueled by our unprecedented consumption of fossil fuels since the industrial revolution sends spending on a rocket ride to the stratosphere. The cost of damages from a single climate change-driven wildfire can easily reach into the billions…the 6 billion-dollar price tag of the Los Angeles-area Woolsey fire in 2018 is just one example. Yes, fires are natural, but the increase in destruction powered by overconsumption of Big Oil-shilled fossil fuels is like giving a hyper toddler inside the Louvre access to a box of Sharpie markers and a few cans of spray paint…on purpose. They KNEW what was going to happen, and they did it anyway.

While the Mona Lisa is now sporting a neon green mustache, an unlikely superhero team is forming to hold the culprits accountable. A growing, organized movement of scientists is using research superpowers to provide hard data to attorneys who are suing Big Oil. Their products have made climate change into the destructive, deadly, and heartbreaking force it is today, and in spite of their own data predicting the consequences of using fossil fuels decades ago, they pushed and pushed and pushed until endless consumption became a way of life.

There IS a path towards to accountability and monetary reparations for the damage wrought by Big Oil companies and their pursuit of profit above all else…and it leads right through the halls of justice.

I’m your host Jess Phoenix and this is…SCIENCE.

Jess: I'm joined by California's Attorney General, Rob Bonta. In addition to being an attorney, AG Bonta is a former California State Assembly member, and now serves as the state's top elected law enforcement officer. His public policy work has spanned issues as disparate as prohibiting private, for-profit prisons in the state, to suing tech giants Amazon and Google for violating antitrust laws. The work is essential, but I wanted to talk with the Attorney General about another legal battle he's initiated on behalf of the State of California, and, really, for all of us. In September 2023, Rob Bonta and his office sued five of the world's biggest and worst-polluting fossil fuel companies. It should go without saying that when the world's fifth-largest economy, California, decides to sue someone, it makes headlines worldwide. Aside from the potential for California to win compensation for the destruction wrought by fossil fuel-induced damages, this suit kicks the door wide open for future legal efforts to claw back some of the trillions of dollars in profits big oil has made at the expense of our health and our environment. Thank you so much for being here, Attorney General, and if you could start us off by explaining the deception at the heart of the lawsuit, that would be great.

Rob: Absolutely. Well, first, thanks for having me. Honored and grateful to be here to have an opportunity to talk about this important case. We think this is a critical lawsuit because we are the largest economy, largest geographic entity to ever sue the fossil fuel companies for their role in climate change deception. So, this, at its heart, is a climate change deception case. The deception is very, very important. It rests on a factually-supported theory that the five fossil fuel companies that we've sued, ExxonMobil, BP, ConocoPhillips, Shell, Chevron, and the American Petroleum Institute, knew about climate change for decades, since the 1960s, and lied about it. They knew with terrifying accuracy exactly where we would be today with respect to global warming, with respect to extreme weather, all of the damage and the challenges that we are currently facing today, and that we, as a public, are paying for, the fossil fuel companies are not, they knew about. And it was a problem for their bottom line, and in pursuit of endless profits, their decision was to lie to the public about it. They created doubt. They created front groups, like Global Climate Coalition, which sounds like a pro-environment entity, but really is a front group that was spreading lies, and casting doubt. They had internal memos, and we have smoking gun after smoking gun, in our view, of them knowing exactly what would happen, when it would happen, with respect to climate change, and then they've decided to lie about it. So, this case seeks to hold them accountable. And we are currently the fifth-largest economy in the world. We're about to be the fourth. I always like to say that.

Jess: Yep, yep. We're getting there.

Rob: So, we're growing quickly, and anticipated to be the fourth-largest economy in the world, and we are grateful that the world has taken notice, that this lawsuit has been seen for what it is, as a landmark, historic, unprecedented lawsuit to hold these entities accountable. And we have a number of causes of action that are the broadest, most robust sets of claims ever brought against these entities. And I do wanna say that there are other states, and other local jurisdictions, who have brought lawsuits against the fossil fuel industry. I'm grateful for their work.

Jess: You did mention something that I wanted to point out, which is, you know, if anyone listens to this show and is a scientist or loves science, they know that the concept of human-caused climate change is not a new thing. Scientists have actually been publishing about the potential global consequences of massive releases of carbon dioxide and other greenhouse gases in the atmosphere since the 1800s, and we're currently living with the very real effects of human-driven climate change. So, we're seeing more increasing and more severe extreme weather events, and here in California, we're getting kicked in the teeth by those events. So, what sort of fossil fuel-driven climate consequences experienced by Californians prompted you to seek relief via the courts?

Rob: You know, what we're experiencing here in California, you only need to use your own eyes, and your own lived experiences as Californians to understand exactly what we're talking about with respect to the consequences that these fossil fuel companies have created. And it's enough to make your head spin, and give you whiplash. We have droughts, and we have floods. We have wildfires and we have super storms. We have historically cold springs and historically hot summer. So, we're seeing it all and so, people are suffering. And they're experiencing the challenges. We are paying for it. Our infrastructure is getting damaged. Our houses are getting swept away. Our world-leading agricultural system is suffering. And so, there are so many different challenges. And the requests for a remedy in this case, there are four remedies being requested, but the main one is an abatement fund, a fund to be paid for by the defendants who have engaged in climate change deception, to seed it, and put billions of dollars into it, to pay for all the damage that they have caused. And abatement and mitigation looks like different things. It can be clean air centers, to address the dirty air. It can be, you know, caused by wildfires, and unhealthy air. It could be cooling centers, to address extreme heat. It could be forest mitigation, to address wildfire, sea walls for sea rise, water storage to address drought. So, there's a whole, you know, limitless, really, numbers of applications, but the main remedy is an abatement fund paid for by the defendants. We're also seeking an injunction to stop lying. Stop lying. Stop the climate change deception. Simple, but they're still engaged in it, in real time today. Just to sort of finish full circle, we're also seeking penalties and damages. But the abatement fund is the core. That's the heart of the case. It rests on our public nuisance claim in our complaint.

Jess: "Public nuisance" sounds like it's so much milder than it actually is.

Rob: Right, right.

Jess: But legal terms. You have to go with what the law understands when you do things like this. So, as a scientist, I've done climate research on multiple continents, and I've seen the data, I've collected the data, but I've also evacuated large animals from wildfires here in Southern California. And loading terrified horses into a trailer while flames are racing down a hill towards you is something that I'm gonna carry with me forever. And I'm lucky. I haven't had a personal loss from wildfire, but a lot of Californians are unfortunately becoming personally acquainted with the effects of climate change. So, what's your personal motivation to hold these companies accountable? I mean, aside from it's the right thing to do. But how does it personally stick with you? Rob: Yeah. You know, we all bring our lived experiences to our work, and mine includes being raised in the headquarters of the United Farm Workers of America, in la Paz, in the Central Valley, when I was a young boy in the early '70s, and both my parents were activists and advocates, and worked for the United Farm workers. My dad worked in the front office, with César Chávez, my mom in the preschool, with Dolores Huerta, proud that my family was part of one of the greatest social justice movements and labor movements, also an environmental justice movement, to make sure that workers worked in safe conditions, that they were breathing clean air, had access to clean water, and that equity component, that people should be treated fairly and justly, and that climate change is certainly an existential threat to all of us. But it also touches frontline communities first and worst. Those who live at the intersection of poverty and pollution, who are under-resourced and overburdened, are often the ones that need the most support. And so, I saw that from an early age, and, as a legislator, continued the important work of addressing climate change, helping cement and solidify California's role as a leader in this space, also a, certainly, a beacon of hope and a source of light to others. When we go to conferences nationally, and around the world, people are so happy to see California, because they see what's possible if we lead with science, and facts, and data, and evidence, and take appropriate action.

Jess: You're speaking my language. Yeah, yeah.

Rob: Yeah, we like science. And so, you know, from my early years in the Farm Workers, to, you know, my adult years as a policymaker, I've seen the impacts on people. It's certainly, you know, climate change is about, you know, glaciers and polar bears, but it's about people, and doing everything in our power to make sure that the next generation has, and the generation after that, has a planet. And also, you know, to hold people accountable. And, you know, you shouldn't lie. You shouldn't profiteer based on those lies. You shouldn't be able to externalize your costs and reap all of the profits. You should pay for the damage that you cause. And, you know, just one final personal note, I'm a proud dad of three. And, you know, AG is a title that I'll always cherish, and it's a great honor to have it. But the most important titles to me will always be dad of my three kids, husband to Mia. And my oldest daughter, when she was in high school, said to me, she said, "Dad, is this weird?" And I wasn't sure what she was gonna say, but that was the lead-up, and she said, her follow-up was, "My friends and I are talking about how we don't wanna have children, because we don't want to bring our kids, you know, new lives on to a dying planet." And I said, "Sweetheart, that's not weird," but inside, I was gutted that she felt that way. And, you know, that sort of feeling, and desire to not have others feel that way, or to lose hope, and to make sure that we have a planet we can deliver to the next generation, something that's, we should always be giving something better to the next generation than what we've had, we're at risk of not doing that here. And part of what we're doing here is holding folks accountable for creating, through deception, our climate change crisis.

Jess: I think that's exactly the right thing to keep at the core of what any of us are doing about climate change. So, here at the Union of Concerned Scientists, in 2015, we actually published a report called "The Climate Deception Dossiers." And it was direct evidence gleaned from FOIA requests, lawsuits, leaks to the public, and it documented the deliberate practice of lying to the public. And there are known, quantifiable harms of continued consumption of fossil fuel products. Like, that is incontrovertible. But historically, the public seems to hate nothing more than being lied to by organizations or people with power. So, how will California's lawsuit help shine light onto the intentional deceit? Do you think actions like this lawsuit can really make the public care?

Rob: I think so. And, you know, we've put together, as you mentioned, an over 100-page complaint. We did that by design. We wanted to tell the story, in detail, not general references. We wanted to specify memos, and internal documents, and front groups, and op eds, that were all used to deceive, to spread lies, to, you know, the merchants of doubt, right? And if, they have always believed if they could create doubt about the science that they knew to be true, that would allow them to continue to profit. And everyone understands that they don't wanna be lied to. They deserve not to be lied to, especially when someone with power is hiding something that they know the people would wanna know about, but they deceive them and tell them something different, make them believe something different. And that's happened time and time again in different industries, and, you know, with incredible consequence in this industry.

And so, we're telling the story. It's super important. You know, we're proud of our complaint. We don't think many people are gonna read 100-plus pages of the complaint, but there's, you know, about 10 pages in there that you read, that tell the story from the '50s and the '60s to today, from the early lies, knowing about global warming and extreme weather, which would eventually come from their product being sold, you know, in California, throughout the country, and around the world, and then leading up to today's ongoing deception of greenwashing. And those 10 pages will make your blood boil...

Jess: Okay.

Rob: ...to see that, you know, that those with power lied. And they also knew there were pathways. There were clean energy pathways. They knew about them, and they jettisoned those pathways to pursue the pathway of fossil fuel, that has led us to where we are today with an existential threat. And so, I think everyone can connect with that. They don't wanna be lied to. They don't wanna be harmed by those lies. And the people who lied should stop lying, and they should pay for the harms of those lies. Simple and it's all in our complaint. We know how much it has cost us to address wildfires. We know how much it has cost to address floods and superstorms. So that can all be used as bases to get an accurate assessment of what the full cost will be. But it's gonna be billions and billions of dollars. And, you know, they should pay for the damage that they've caused by lying.

Jess: I think it's much-needed, so, my personal opinion, and my opinion as a scientist, it sort of all ties into this. So, something that we talk about a lot now in the environmental science space is the field of attribution science, where that's where we connect the relative contributions of different polluters to climate change trends and increasing risk, like sea level rise. It's gaining prominence in the science and public policy worlds, this attribution science. How does this suit make use of that kind of science and data to connect the dots between the oil companies and the climate-driven harms that we feel here in California?

Rob: I mean, that'll be a key part of the case, you know, causation. Linking their uncontroverted conduct, their production of fossil fuel, and, you know, drawing the causal link, the attribution, to the climate change. We'll use the best available science, and scientists and experts to help make the case. And, you know, it'll be likely that the liability, should we prevail, and we believe and hope we will, will be joint and several, so collectively, they'll be held joint and severally liable, and be forced to put money into the abatement fund, to protect people from ongoing challenges of climate change and threats.

Jess: Can you tell us what the ultimate legal aims of the lawsuits are? You've got the abatement fund, but what is your ideal outcome? If everything goes in the state's favor here, what does it look like?

Rob: Yeah. The major remedy, again, that we believe will really move the needle, is the abatement fund. And we sort of put the causes of action, the claims, in our complaint into four buckets. I'll sort of consolidate and sort of put it into a bigger bucket of deception. Lying. Falsely advertising. So, we have three claims that all kind of go into that bucket. We have the products liability, sort of a failure to warn. So, knowing about the damages of their product, but failing to warn the public about it. That's sort of bucket number two. Public nuisance is a bucket of its own, sort of our first claim, and cause of action, and probably the most robust one in terms of the remedy that accompanies it. And then we have a smaller one that is only available here in California. It's available to the attorney general, as a defender of the natural resources. It's a damage to natural resources claim. So, those are sort of the four. The abatement fund is the biggest, most robust remedy that people will really feel, to address climate change. The injunctive relief, meaning changing your conduct going forward, will also be felt, because greenwashing and ongoing lying will have to stop. And then we see some penalties and some fees, which are lower amounts of money than the more robust abatement fund. But the abatement fund is really the big change. One, to have a court, a neutral arbiter of the facts and the law, where everyone has due process and ability to present their best case, decides, and opines, and rules that these fossil fuel companies did engage in climate change deception, that they are liable, and must pay to mitigate, and in a forward-going way, prevent additional damage from climate change and you know, again, the largest geographic entity and economy that's ever sued them. And, you know, we understand that we are on the cutting edge with our plaintiffs, other states and local jurisdictions, and we invite others to participate in holding accountable these fossil fuel companies. There are causes of action in other states, where other states can sue. The United States is not the only entity with authority. You know, the states of the United States is not the only place where there's authority. Other countries' jurisdictions can sue as well. You know, we should participate, collectively, in holding these fossil fuel companies accountable for what they've done to all of us. And we're doing our part here in California for what they've done to Californians.

Jess: Yeah. And I think that makes a lot of sense. And, you know, California is the biggest out of the 40 cities, counties, and states, so, here in the U.S., that have brought suit against the fossil fuel industry. So, that means a quarter of Americans live in a jurisdiction where lawsuits like this one have been filed. 57% believe fossil fuel companies are responsible for climate change damages, and the number's higher in California. It's 65%. And they also believe that companies should pay for those damages. So it seems like there is popular support for this, but is there, you know, is this another tool that all of us need to think about? The litigative side, is that another tool in our approach to leveraging our work as scientists? Like, should we always be thinking our data could be used to support litigation? Is this new normal for us?

Rob: Short answer, yes. I think it's all tools in the toolbox. You know, when you have a state of crisis, a state of emergency, like the existential threat of climate change, that was created knowingly, and lied about by fossil fuel companies, and it threatens the future of our children and our grandchildren, we should use all the tools that we can that are available to us. And so, separate from litigation, an entirely different track, there will be policy-making. Legislative bodies and policy-making bodies like, you know, the U.S. Congress and the state legislatures, they will do their part to address climate change. Some will be aggressive, like California has often been. Others will be in denial of even the existence of climate change, and everything in between.

Jess: You're telling me.

Rob: But that is a lever to pull, and completely separate from what we're doing. We're going the litigation route. It's a route that's proven to be able to hold major industries accountable for doing exactly what's been done here, putting something harmful out into the world and lying about it. It's happened with the tobacco industry. It's happened with the lead paint industry. It's happened with the opioid industry. And through collective action, multiple states, private plaintiffs, you know, many entities suing, and then joining forces and collectively getting to a global agreement, we've been able to hold accountable industries that have harmed in just this way. And so, and the science, as you've mentioned, whether it be attribution science, or other type of expert testimony being provided by scientists, will be a key part of these cases. So, yes, I think scientists should see the importance and necessity of their role in participating in critical impact litigation like this.

Jess: Yeah. That's, it's a new way of thinking about how we do our work. And I think it's, you know, the partnership between the law and the science, that's how you get to the truth. You find evidence, you find data, and then there you go. That's reality. And we can't keep denying reality, unfortunately. So, since we are the Union of Concerned Scientists, I ask all of my guests one last question, and it's a two-parter. So, the first part is, AG Bonta, why are you concerned?

Rob: You know, I always think about everyday people, who are busy, living their lives, you know, scraping, going to work, often dual-income households, trying to raise their kids, trying to get a shot at the California Dream or the American Dream, and are, you know, doing everything the way they've been told. You know, work hard, contribute. And when I see abuses by people with power, who know better, who knew the truth, but pursued lies, and hurt everyday people, like the ones I just described, in the process. And there are others. You know, there are others who are much more vulnerable, or, and those with means, and everyone in between. They're all getting hurt by these folks who have participated in a, you know, a global, national, and statewide lie. And I always think about everyday people, and those who are being harmed by those with more power, who are abusing it. And my job, what I'm concerned about, is justice for them, fairness, and making sure that the little guy isn't abused by the big guy who abuses their power. And that's really what my job is, at its core, in oversimplified terms, is to even the scales of justice, and make sure that everyone is treated fairly. People are being treated very unfairly. Their future is, there's a risk that it's being stolen from them, and the dreams that they have, and they deserve someone who's gonna use their power and authority, mine, as the California Department of Justice's lead, to hold those folks that are hurting them accountable, stop them from hurting them, and make sure they pay for the damage that they've done. So, the future of the everyday Californian to depend on their attorney general to fight for them is what concerns me. And my response is to go after those who are hurting them, and hold them accountable, and stop them from hurting them.

Jess: Yeah. And then, so, the second part of the question. I mean, you touched on it, but, and I know you're doing this lawsuit currently, but what are you going to do about these concerns, looking forward?

Rob: Use the full force of the law and the full authority of my office to hold these individuals accountable who are hurting everyday Californians, and to stop them from doing it, to make sure that the story is told and understood. Some of it, people wouldn't believe, that, you know, the lies are so, you know, egregious and shameless. And the rationale behind it, you know, endless profits, is, you know, shocking, and, but, in some ways, based on other industries that we've seen, at least to me, unsurprising. But the story must be told, the truth must come out, and the harm that's been caused needs to be addressed and mitigated, so that, you know, folks can live without the threat and risk of, you know, this existential threat taking away their lives and their livelihoods.

Of course, there is a fundamental difference between creating good policy via legislation and using litigation to hold polluters accountable. Both kinds of accountability are essential, and both happen in the context of, and in concert with, broader social movements. It takes people like YOU speaking up and speaking out, to move the needle for change. You can learn more about the critical work our scientists are doing to hold Big Oil accountable as well as find resources and opportunities for your own accountability work by visiting the Science Hub for Climate Litigation at ucs.org…that’s UCS.org.

Thanks again to Anthony Eyring and Omari Spears for production help, and to Sarah Goodspeed, Delta Merner, Kathy Mulvey, Carly Phillips, and the team at AG Bonta’s office for their help making this conversation happen. Thanks also to Nancy at the Muse Rooms coworking space for providing a lovely venue for our conversation. Live long and science, friends!