Listen to Robert Percival, director of the Environmental Law Program, Robert F. Stanton Professor of Law at the University of Maryland Francis King Carey School of Law, chat with host Laura Ireland about the possibility of states using tort litigation to make oil companies accountable for their role in climate change misinformation.
Announcer: This podcast is a production of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School.
Laura Ireland: Hi, everyone. Welcome back to the Hothouse Earth Podcast. This is Laura Ireland, assistant director to the Animal Land Policy Institute here at Vermont Law Graduate School. And once again, we have been inspired by one of our hot topics from last summer and excited to have a guest who was one of our visiting professors over the summer, Professor Robert Percival, who is the director of the Environmental Law Program, and Robert Stanton, Professor of Law at the University of Maryland.
Francis Kane Carey School of Law. Before that, he served as a law clerk for Judge Shirley M Hostettler of the Ninth Circuit for the Supreme Court Justice Byron White, and spent six years and is an attorney for the Environmental Defense Fund. He has served as a visiting professor at Harvard Law School and Georgetown University Law School. He was a William Fulbright scholar at the China University of Political Science and Law in Beijing in 2008 and has worked at China's Supreme People's Court, the National People's Congress, the Chinese Ministry of Environment Protection and the China Council on International Cooperation for Environment and Development.
He has presented lectures at more than 30 Chinese universities, and in 2009 he represented the US State Department and a lecture tour of China. So welcome to the podcast, Professor, first of all.
Robert Percival: Great to be here.
Laura Ireland: How long have you been teaching at the summer program at Vermont? Long graduate school?
Robert Percival: More than ten years, I think. I first started in 2012.
Laura Ireland: That's so great. How do you like your summers up in Vermont?
Robert Percival: Well, Vermont is the place to be in the summer. So I particularly love that they give their summer faculty a cabin in the woods, and you cannot imagine a better place to be during the summer.
Laura Ireland: Oh, it's so great. We so appreciate having so many amazing experts be able to join us over the summer. Such a great opportunity for students and a great way for other law students to also spend a couple of weeks in Vermont learning from experts in the field. I think there's just no other other way to get that type of experience.
So thanks for joining us. And so a little bit off-topic before we jump into the topic of today's conversation, But I'm just really interested in your background of working with China and what drew you into that field and all of your experience there.
Robert Percival: Well, I actually first visited China in 1981. President Reagan had just come to office and I had been working setting up the Education Department with Judge Hostetler, who was appointed to be the first U.S. secretary of education. But then with the new administration, she left office and I spent six months traveling around the world. And the first place I landed was in Hong Kong.
And I found out that China, the mainland, had just opened to foreign tourists for the first time and that it was possible to actually visit it. And so for two weeks I did a tour starting in Beijing and going out to Sheehan and then riding train all the way back to Shanghai and what was then called Canton, which is now one show, and most Chinese had never seen foreigners before.
So it was an amazing experience because everywhere I would go, crowds would gather around me. I was always smiling and waving at crowds. I felt like I was an American political candidate and it was really a warm welcome to China. And then it wasn't really until 2005 that I started going to China. Every year I was invited by someone who was using my casework to teach environmental law as a Fulbright or in China.
And I spent my spring break over there and met with some of the top Chinese environmental public interest lawyers and then got invited to a high-level meeting between the US embassy and the Chinese government. And then once you made personal contact with Chinese officials, that was once an invitation after another. I ended up going to China sometimes two and three times a year.
From then on, of course, because of the COVID lockdown, I had not been there since May 2019 until I went there in August of this year with my field trip for my course in environmental governance in the developing world.
Laura Ireland: So obviously you've been part of the environmental movement for a long time and, you know, many decades of writing important legislation, but then also how to hold offenders accountable. And so it was great to listen to your hot topic from last summer about how to hold oil companies responsible and drawing parallels from tobacco litigation strategies. So I just would love to chat with you a little bit more about that, how you came to kind of look at that as maybe a viable strategy and then talk about some of the obstacles that that might be hard to overcome this because they're a little bit different.
But so what was your light bulb moment of thinking that, you know, maybe the tobacco litigation strategy would be a good one to bring into the environmental field?
Robert Percival: I taught a seminar on tobacco control and the law. I thought it was a great vehicle for being able to introduce students to the influence of science on legal and regulatory policymaking. And it was at the time when the FDA was considering regulating tobacco and the discovery that the tobacco companies, as a result of a whistleblower coming forth, had been deliberately manipulating nicotine levels in order to attract as many smokers as possible, which spurred the FDA to decide that even though it had long taken the position that it had no jurisdiction over tobacco products.
Now that Cigarettes were being used as a drug delivery device to hook smokers, that it clearly fell within the definition of the FDA's regulatory authority. That led to some far-reaching regulations that then were in a 5 to 4 vote, were struck down by the Supreme Court. And that led to Congress at the beginning of the Obama administration, passing legislation that clarified that the FDA did have the authority to regulate tobacco.
And they've been working ever since to try to reduce the number of smokers, to reduce the addictive effects of tobacco products and to save countless lives as to result. Now, what ultimately brought the tobacco companies to their knees was not regulation by the Food and Drug Administration, but rather a series of state tort lawsuits. Many smokers and their survive.
Jurors had tried to bring conventional tort suits against the industry, arguing that because Cigarettes were very dangerous and would give you lung cancer and kill you, that they had made a defective product and should be held liable in tort. But the tobacco industry greatly benefited from the fact that they had to put warning labels on their products. And they argued this was a simple assumption of risk defense.
You knew we weren't. Tobacco was harmful. You still used our products and therefore we're not going to be liable to you. And that worked fairly substantially. It was only when state attorney generals developed a new legal theory that tobacco products, because they were killing off so many people and causing diseases like lung cancer, were greatly exacerbating health care costs in their jurisdictions.
So it all started with a lawsuit brought by the attorney general of Mississippi and then ultimately the other states joined in. And this led at the very end of the 20th century to the Masters settlement agreement, where the tobacco companies agreed to pay over $200 billion to the states to compensate them for that damage caused by their products.
And also they were sued by the federal government for racketeering conspiracy. There was substantial evidence that the industry had conspired in a massive disinformation campaign to try to make the public believe that their products were safe. And the parallels between that and what the oil companies have been doing are really quite striking. Now, state attorney generals, county attorneys, certainly attorneys and scores of jurisdictions have been suing the oil companies, arguing that they engaged in the same kind of deceptive conduct with respect to their products by denying that climate change was real, by funding disinformation campaigns, by trying to create doubt in the minds of the public, they're now being sued under a variety of state
consumer protection laws, arguing that they deceived consumers into thinking that their products would not contribute to climate change. And there have been so many lawsuits, the companies have been fighting them tooth and nail, trying to remove everything to federal court in hopes that an industry-friendly Supreme Court would bail them out. But they've been uniformly unsuccessful because these truly are state law claims for fraud and not efforts to use the federal common law nuisance to regulate fossil fuel products.
So it's a very similar situation to what you had with tobacco. I think ultimately we may see something similar to the master settlement agreement where the oil industry has to agree to pay hundreds of billions of dollars that the states badly need to adapt to climate change as a penalty for the disinformation that they filed over decades concerning the deadly effects of their product on the global climate.
Laura Ireland: Do you see that? You know the case? You know, there's some cases like the youth in Oregon or what just happened in the Help case, you know, so those individual cases are moving forward. Do you think that the individual cases, you know, maybe big oil doesn't have quite the same protections as tobacco does? Or do you see that the oil industry also has that kind of similar ways to fend off that type of damages and litigation?
Robert Percival: Well, it's interesting. You mentioned the climate case in Oregon. That's actually a lawsuit against the federal government for failing to protect us. But what was very interesting, the oil companies initially intervened in that suit to defend the federal government, and then they realized all this could get us in trouble if we're also involved in this lawsuit because of all the discovery they can do against us and because of our terrible history of trying to deny climate change.
So they quickly moved to dismiss themselves from that litigation. And of course, they'd like to get rid of all these states, court lawsuits, but they've been completely unsuccessful. So I think they may be facing a similar type of reckoning to what happened to the tobacco companies, particularly as more and more evidence develops about the coordinated disinformation campaigns that they engaged in.
Laura Ireland: Maybe some hurdles, too, in that there are, you know, quite a few different kind of causes to climate change. And we can also point to maybe some deforestation or animal agriculture. Are there methods to kind of parse out what, you know, what sort of damage should be attributed to oil companies, or is it mostly just the fact that the disinformation campaigns is really what is going to be the hook to hold that responsible?
Robert Percival: Well, we're actually seeing in recent years that there have been major advances in scientific research, what they now call climate attribution science, where scientists can tell us with much greater precision the extent to which certain emissions contributed to the overall problem. So, yes, you're right, there are many contributing factors, but it's now going to be possible for a court to parse what percentage of the harm the company should be liable for based upon the contribution of their emissions to the overall global problem.
Laura Ireland: You know, so much of the policy work and the way that to move these cases forward does still rely on science.
Robert Percival: Well, and having that science background is a very powerful combination. Yeah, there's nothing more powerful than a scientist who understands both science and the law.
Laura Ireland: So you're saying that there are quite a few cases that state agencies are bringing where they act?
Robert Percival: Well, the cases have not actually come to trial yet, in part because of all the procedural obstacles that the fossil fuel industry has tried to erect to delay ultimate judgment, The oil companies removed every single case to federal court, and they had very little legal grounds in order to do so. It is possible, as a result of the history of the civil rights movement to remove cases that involve federal officers, the federal courts, which was the protection that Congress granted when some states started resisting federal efforts to integrate.
But the absurd argument that these companies are making is that we should be able to remove the cases because we have contracts to sell oil to the Defense Department. It's sort of like saying the feds made me do this because I sell oil to the Defense Department. Well, that didn't make you engaged in a massive disinformation campaign about climate change.
So they're being kind of laughed out of court with respect to those grounds for removal. So every single court has remanded back to the state courts, the companies that appeal. They went to the US courts of appeal again, they lost their they then went to the Supreme Court and then the Supreme Court. They pointed out that there was this very technical difference between how one U.S. Court of Appeals had said what grounds could be considered for removal and the rest of the US courts of appeal.
And on the basis of that, suppose it circuit split. They got the Supreme Court a few years ago to review a case involving the Mayor and city council. Baltimore, and went Once they gone to the Supreme Court, the oil company said, Well, now that we're here, why don't you just intervene and wipe out all state court climate litigation?
And even Justice Amy Coney Barrett, whose father was a Shell Oil company executive, that that would be awfully aggressive of us to do that. The court refused to do that and instead resolved the technical procedure, general circuit conflict, and then the cases went back down. Same pattern repeated itself. The oil companies lost at the trial court and the federal court system.
They lost on appeal and they again took it up to the Supreme Court. And on April 24 of this year, 2023, the Supreme Court denied review. In all of those cases. Now, there is a single case from Minnesota that they've now once again tried to bring up before the Supreme Court. But I think it's pretty clear by now that the Supreme Court is adhering to its proper role in a federal system by saying we should not be intervening in state court litigation.
There's no federal interest here. These are all state consumer fraud cases and case after case, the Supreme Court has denied review over water, basically state tort claims. And they've indicated that this is how they consider these cases. So eventually it won't be very long. Some of these cases will be going to trial in state courts and the public will start learning some horrifying things about the history of how the fossil fuel industry responded to climate change.
And it may get to the point where there are so many of these, just like there were suits brought by every state in the union against the tobacco companies, that the only way to efficiently resolve them will be some form of a master settlement agreement. You've seen this recently with respect to the opioid litigation as well. So there's kind of a model out there for doing so, and I would not be surprised.
And if there's one industry that can afford multi hundreds of billions dollar settlement, it used to be it was the tobacco industry. Now it's the oil industry, the fossil fuel industry. They could afford such a settlement and it may prove to be in their legal interest to do so in the future.
Laura Ireland: In terms of the oil industry and just as consumers is that we can't avoid using oil, you know, and cars, petroleum products, you know, even if you try to, you know, not drive as much, you know, terms of how food is transported or goods are transported and airplanes And I mean, it's it's so insidious. It's it's really difficult to not be a part of it, which might be a little bit different than like opioids or tobacco and that people were certainly encourage, especially in the tobacco industry. But, you know, it definitely affects everyone and everyone is involved.
Robert Percival: I'll beg to differ a little. For the last 11 years, I found a fully electric car. Yes. But I'm now on my second generation Tesla. I totally loved it. It's changed my life in a very positive way. So it is possible, although rather expensive to use fully electric transportation.
Laura Ireland: Yeah, that gets into equity issues. And who really has access, you know, in terms of being able to make those choices and what might come out about the petroleum industry is, you know, they're, you know, not allowing for more fuel-efficient vehicles or, you know, blocking the introduction of more solar or wind or electric vehicles.
Robert Percival: Yeah, they they certainly so many of those companies wrong things about making net zero pledges. And then after the Russian invasion of Ukraine, when oil prices spiked, they were making so much money that a lot of them are now trying to expand oil production despite their earlier pledges.
Laura Ireland: Interesting. Any other little nuggets of what may be coming down in terms of what people might be surprised to learn about the extent of their their efforts?
Robert Percival: Well, there's a very long history there. Already some documents that have surfaced that show that it was sort of parallel to what the tobacco companies did way back in 1958. The tobacco executives all got together with a major public relations firm to try to coordinate a strategy to convince the public that the increasing warnings that Cigarettes might be dangerous were wrong.
And they ultimately created this industry front group, the Tobacco Industry Research Committee, and they took out full-page ads saying we want to protect the health of our smokers and we're going to make sure that our products are safe. And it was all a false front to spread disinformation in similar fashion. We know that major fossil fuel companies funded climate denial groups. And so I suspect that as we have more and more discovery, we'll see similar behavior from them. One thing that's always stuck in my craw was that on the eve of the Kyoto time, when the nations of the world ultimately adopted the Kyoto Protocol, the chairman of the board of Exxon, Lee Raymond, gave a speech in Beijing where he told developing countries at a major petroleum conference that they should not agree to any measures to reduce greenhouse gas emissions because the continued use of fossil fuels was absolutely vital to their development.
Again, another way of directly trying to influence public measures to delay efforts to control greenhouse gas emissions. I think, you know, one thing this history tells us is that it's very important not to put all your eggs in one basket, like focused solely on regulation, focus solely on litigation. The tobacco experience demonstrates that you need a combination of both and cases that all different levels.
The federal government ultimately brought a RICO suit, a racketeering influence, corrupt organizations suit against the tobacco industry. The courts ruled that you could not use RICO to force disgorgement of past profits in similar fashion. Now, some states and the Commonwealth of Puerto Rico have recently added RICO claims claims of a racketeering conspiracy to the lawsuits against the tobacco industry.
Now, what ultimately came out of the federal government's suit against the tobacco industry was that they were required to run counter-advertising that admitted that they had lied to the public and told the truth about the deadly nature of their products. A similar type of lawsuit against the fossil fuel industry using RICO could result in measures like that.
The tobacco companies also were required to turn over all the files of the Sham Tobacco Industry Research Committee that revealed the cynical way in which they had tried to deceive the public. And we may see similar things happen with respect to the fossil fuel industry as well. You, the US, of course, has a reputation worldwide as being one of the more litigious countries in debates over FDA regulation in recent decades.
He's also often seen the drug companies argue that any product that is approved by the FDA should automatically be insulated from any future tort liability. Because you have the government agency saying it's safe and effective for its intended use. But history demonstrates that often even our comprehensive system of regulation misses some very dangerous hazards. So we did that with asbestos.
Hundreds of thousands of people were killed by asbestos exposure, and it wasn't until long after that happened that we started measures to try to phase out the remaining uses of asbestos, all based on the regulatory system. If you insulated from liability in tort any product that had been approved by the FDA, it would just create a greater incentive to try to get shaky products approved so that you would buy relief from the tort liability for it.
Liability is essential to be kind of the safety net for when our regulatory system fails to prevent substantial harm in advance.
Laura Ireland: Sounds like there might be some really interesting and eye-opening events that will be will be surfacing in terms of the fossil fuel industry. So thank you so much for joining us and thanks so much for all of your hard work. Thank you. And I love being able to chat about it and looking forward to seeing you next summer as you come back to Vermont.
Robert Percival: You all. Nice talking to you.
Laura Ireland: All right. Well, thanks, everyone, for tuning in to this episode of the Hothouse Earth podcast. We'll see you next time for.
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