California Climate Change Litigation: Will Big Oil Learn How to Fight? 


“Chevron Corp. walked a narrow line [Wednesday] in acknowledging humans’ role in climate change while highlighting uncertainties that could help shield it from cities’ claims for damages stemming from sea-level rise,” ClimateWire reported Thursday.

Chevron lawyer Ted Boutrous told federal Judge William Alsup “There’s no debate about climate science.” His company “accepts the consensus of the scientific community” that recent climate change is real and caused primarily by industrial activity.

According to the San Francisco Examiner, the lawsuits filed by San Francisco and Oakland against Chevron and four other oil and gas companies “ask for financial compensation, possibly in the billions of dollars, to pay for seawalls and other infrastructure to protect people and property against rising sea levels and global warming.”

Plaintiffs also allege the oil companies engaged “in an organized campaign to deceive consumers about the dangers of massive fossil fuel production.” However, Judge Alsup dismissed the charge that the companies conspired to hide climate science.

Alsup, a judge known for asking both sides of a case to brief him on technical issues before proceeding to trial, invited the plaintiffs and defendants to participate in five-hour climate science tutorial on March 21st. He asked each side to discuss the history of climate science and answer eight specific questions, such as: “What are the main sources of heat that account for the incremental rise in temperature on Earth?”

Boutrous denied that oil companies are responsible for sea-level rise or any associated property damages in California. Based on news reports, he argued from authority, invoking the  U.N. Intergovernmental Panel on Climate Change’s (IPCC) and its Fifth Assessment Report, published in 2013.

Specifically, Boutrous cited IPCC data showing decreases in sea level off the West Coast during 1993-2012, highlighted uncertainties in IPCC projections of future sea-level rise, and denied that the IPCC holds any company or group of companies responsible for climate change: “The IPCC does not say it’s the extraction and production of oil that is driving these emissions,” he explained. “It’s economic activity that creates the demand for energy, and that leads to emissions.”

The last point is a good one. Global emission levels reflect the purchasing decisions of billions of customers, who include city officials in San Francisco and Oakland, not the machinations of energy company executives. Consumption and therefore emissions tend to increase when energy prices fall, and decrease when prices rise. If climate scolds were consistent, they would applaud high gasoline prices. Instead, they falsely accuse oil companies of colluding to “gouge” consumer.

Nonetheless, touting the IPCC is not a winning strategy. When it suits their convenience, as was the case at the tutorial, eco-litigants can always cherry pick more recent studies to claim climate change is “worse than we [i.e., the IPCC] thought.”

More importantly, despite acknowledging uncertainties, IPCC reports project severe climate change impacts by the late 21st century. The core IPCC narrative supports the climate litigators rather than Chevron.

In addition, if the oil companies are going to argue from authority, then they should retain credentialed scientists to present their case. That’s what Oakland and San Francisco did. Instead, the oil companies sent a lawyer. Also, if they accept “consensus” as evidentiary, then at least present a united front. Instead, representatives from BP, Conoco Phillips, ExxonMobil, and Royal Dutch Shell said not a word, arousing suspicions that their views may differ from Chevron’s.

Judge Alsup gave the other defendants two weeks to submit details on any points of disagreement with Chevron. “Otherwise, I’m going to assume you’re in agreement,” he said. “You can’t get away with sitting there in silence and then later say, ‘He wasn’t speaking for us.’”

Rather than endorse a “consensus” that everybody knows fuels climate litigation, Chevron and the other defendants should challenge the scientific bona fides of mainstream climatology. No, I am not suggesting they deny the reality of man-made global warming or speculate about what percentage of recent warming is natural rather than anthropogenic.

The key point, as explained by Cato Institute scientist Patrick Michaels, is that the IPCC and other self-appointed climate authorities use an unscientific methodology. The vast majority of climate models “hind-cast” two-to-three times as much global warming as has actually occurred in recent decades. Only one model, known as INM-CM4, accurately tracks warming trends both at the surface and in the bulk atmosphere. Instead of using that model to project future warming and climate change impacts, the IPCC takes the average of all models, nearly all of which are overheated.

Compounding the error, mainstream assessment reports typically run the ensemble of overheated models with a “baseline” scenario, called RCP8.5, in which coal remains the dominant electricity fuel through the end of the century. Just about every energy expert expects natural gas to continue replacing coal as the world’s major electricity fuel. 

When the INM-CM4 model is run with a realistic emission scenario, projected 21st century warming drops to about 1.5°C. In other words, the world meets the most “ambitious” goal of the Paris Climate Agreement but without any punitive climate regulations or taxes.

Michaels, in comments submitted on the U.S. government’s Fourth National Assessment (NA4) report, summarizes the argument energy freedom advocates should make to win in the California litigation and, indeed, in the court of public opinion:

NA4 suffers from a fundamental methodological flaw in assuming that models making large bulk errors are representative of a range of future warming. . . . NA4 also pays inadequate attention to the implications of an ongoing seismic shift in world energy towards natural gas. Warming predicted by the one model that does not suffer the bulk errors, coupled with a slightly lower concentration pathway because of forecast switching from coal to natural gas, becomes a net benefit rather than a social cost.