This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.Berman and Susman aren’t alone in drawing parallels between the actions of the defendants and those of the tobacco industry. The Union of Concerned Scientists, an environmental advocacy group, has accused ExxonMobil of adopting the cigarette manufacturers’ strategy of covertly establishing “front” groups, promoting writers who exaggerate uncertainties in the science, and improperly cultivating ties within the government. The oil company, it says, has “funneled approximately $16 million to carefully chosen organizations that promote disinformation on global warming.”
“The strategy to foster doubt is very effective,” says Naomi Oreskes, a professor of history and science studies at the University of California at San Diego. Oreskes is writing a book on the similar methods that the tobacco and fossil-fuel industries have used to challenge unwelcome scientific evidence. “If ‘nobody knows,’” she says, “then nobody is to blame. If ‘nobody knows,’ then how can we do anything about it?”
The research and public-awareness efforts funded by Big Oil involve some of the same scientists and other professionals who once worked on behalf of Big Tobacco. For instance, Frederick Seitz, a former president of the National Academy of Sciences, who died in March, served as a research adviser for R. J. Reynolds Tobacco Company and then founded the George C. Marshall Institute, an ExxonMobil-funded think tank that has challenged the connection between greenhouse gases and global warming. (The academy dissociated itself from Seitz’s conclusions in 1998.)
The energy industry’s ties to government, like the tobacco industry’s, have been unusually tight, and its lobbying efforts demonstrably effective. Philip Cooney, a liaison between the Bush administration and federal environmental agencies, edited uncertainty into reports on global warming by top government scientists from 2001 until 2005, when he resigned after examples of his changes were published by The New York Times. Before joining the White House, Cooney had worked for the American Petroleum Institute; a week after his departure, ExxonMobil announced he was joining the company. “In a sense, ExxonMobil walked right into the room of the science program,” says Rick Piltz, the federal official who blew the whistle on Cooney. A government memo obtained by Greenpeace outlines a State Department official’s talking points for a meeting with energy-company lobbyists: the president, the memo says, “rejected Kyoto, in part, based on input from you.”
Proving that energy companies tried to slow government action on global warming won’t be hard. The challenge in the Kivalina case, as it was in the breakthrough tobacco cases, will be to prove that these companies lied in the course of their business, and were aware that the consequences could be dangerous. “You don’t want to interfere too much with efforts by people to lobby,” says Eric Posner, a professor at the University of Chicago Law School. “On the other hand, if they’re deliberately engaging in deception, there’s a stronger argument.”
Climate-change litigation is so new that legal experts have little idea how to handicap it; in unexplored areas of tort law, cases become pivotal only in hindsight. Some legal scholars are skeptical of the merits of the Kivalina case, but many others are looking on with interest. The cultural and political winds are certainly blowing in a favorable direction—and these winds often affect courts and juries. That factor, along with the very deep pockets of Big Oil, is likely to keep the lawsuits coming, testing different theories and different arguments. “It’s sort of like when infantry used to charge the machine guns,” says Joseph Wayne Smith, an Australian lawyer and the author of Climate Change Litigation. “A lot of them would get mowed down, but eventually a wave would get through and take out the pillbox.”
The first tobacco suits were filed in the 1950s, but it wasn’t until 1988 that lawyers were able to find chinks in the industry’s armor. The first lawsuit to succeed was also the first to accuse the industry of conspiracy. It’s anyone’s guess whether climate-change litigation, when mapped to that time line, is closer to the 1950s or to 1988. Indeed, it’s not clear whether warming-related monetary damages will ever be won from energy companies—much less whether they should be. But if the charges do stick in the Kivalina case, the defendants can expect many more in short order, as island nations, ski resorts, drought-stricken communities, and hurricane victims line up for their share. Regulation and litigation are two sides of the same coin. By working aggressively to prevent one, the energy companies may have left themselves open to the other.
Update: Matt Pawa’s name was added to the online version of this article on May 21.