Post Questions & Comments for Professor Percival's Lecture

Professor Percival,

There have been quite a few lawsuits brought by different plaintiffs against different oil companies based on the state law consumer fraud theories. Are there any plaintiffs who are likely to have stronger cases than others, either because of their injuries or relief sought , the evidence they’ve uncovered so far, the resources available to them in litigation, the venue in which they’ve sued, or other factors?

With gratitude,
Dara Lin

Thank you for your questions!

Although it seems likely that some of the lawsuits will be stronger than others, the common law of torts does not vary that much from state to state and the plaintiffs are sharing evidence. The Sher Edling law firm in California has been hired by several of the plaintiffs and is playing a major role in coordinating strategy for the litigation.  The most interesting thing will be to see how the RICO claims that Puerto Rico and Hoboken have added are treated by the courts.

The assumption of risk argument worked when individual smokers brought claims over products that contained federally-mandated warning labels, but it has no applicability in the climate context.  Instead of warning us about their products contributing to climate change, the allegation is that the fossil fuel industry deliberately tried to deceive us with their climate disinformation campaigns.

There is great concern about the ethics of the Justices. John Oliver's "Last Week Tonight" episode that aired on February 18 does a great job of summarizing these concerns.  See www.youtube.com/watch?v=GE-VJrdHMug Political scientists maintain that this is the most pro-business Court in recent history.  However, Justice Alito has recused himself from climate litigation when brought directly against oil companies because he has owned stock in them.  The good news is that, despite efforts by the oil companies to remove these cases to federal court, the federal courts have almost uniformly said the cases are pure issues of state law and remanded them back to the state courts.  The companies say that because climate is a global issue these cases should be governed by federal common law and they cite the 2011 American Electric Power decision by the Supreme Court to say that federal common law is displaced by the Clean Air Act.  However, that was a lawsuit in federal court brought explicitly under federal common law seeking injunctive relief to require emission cuts, so it should not affect the state common law suits. On April 24, 2023, the Supreme Court refused to hear a raft of cases making this claim.  Only Justice Kavanaugh wanted to grant cert.  Justice Barrett is the daughter of a Shell Oil company executive and she said it would be "awfully aggressive" of the Court to accept the oil companies' arguments and reach out to wipe out all climate litigation.

I am not an expert on RICO laws, but I know that they vary from state to state. In the RICO litigation against former President Trump in Georgia it is often said that Georgia has one of the strongest RICO laws in the country.  When the Justice Department went after the tobacco companies using the federal RICO law, the courts said it could be used to get muscular injunctive relief, but not damages.

I hope these answers are helpful.

Professor Percival, 

I enjoyed your lecture. Thank you for taking the time to put it together. I am optimistic a Big Oil settlement agreement could rightfully provide funds that states need to adapt to the challenges of climate change. 

The MSA, in part, banned billboard advertisements, marketing towards youth, and brand sponsorship at sporting events across the United States. Do you think a Big Oil settlement agreement could similarly ban future oil marketing? Specifically, less-than-truthful "greenwashing" campaigns? 

I look forward to your response and to following this litigation more closely.

Thanks again,

H. Madison Short 
J.D. Candidate 2024
Mercer University School of Law

Professor, 

I have a fairly cynical question.  If the oil companies had admitted that their products contributed to climate change and had not engaged in a disinformation campaign, would it have made a big difference for most consumers?  Would consumers have stopped buying gasoline, driven fewer miles, and converted to public transportation more quickly than they did otherwise?   Has ridership on public transportation increased substantially since it has become clearer that oil and natural gas contribute to climate change in the manner that they do? 

Cynically, 
Allyson Reynolds