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Will Fossil Fuel Companies Face Liability for Climate Change?

It is one thing to do your own research, but it is another to deliberately deceive people, contributing to widespread harm primarily to retain profits.

In a recent  article in National Journal, Americans for Prosperity (AFP) President Tim Phillips said there is no question that AFP and others like it have been instrumental in the rise of Republican candidates who question or deny climate science: “We’ve made great headway. What it means for candidates on the Republican side is, if you … buy into green energy or you play footsie on this issue, you do so at your political peril.”

AFP is a section  501(c)(4) organization, meaning it does not have to disclose its donors, but has been tied to  significant funding from the  Koch Family Foundations - founded by the billionaire Koch brothers of Koch Industries – as well as smaller donations from companies like ExxonMobil.  Koch Industries and ExxonMobil are among the largest funders of studies questioning climate change science, often drawn upon by conservative politicians to legitimize their view that regulation of greenhouse gases (GHGs) is not needed because the science is still under debate.

These organizations and their supporters say they are just funding their own independent studies of climate change science. Yet these studies  almost all go against observable scientific data to question global warming – so much so that one study funded in part by the Kochs that  confirmed a rise in average world land temperature was regarded as an anomaly. Which raises the question: if these studies are largely designed not to shed light on climate change, but to create doubt and confusion to delay greenhouse gas regulations, why is it legal, and do those deliberately spreading misinformation face liability?

The first question, as far as I can tell, apparently boils down to: it’s legal because we have yet to make the deliberate manipulation of science illegal.

Yet while people and companies enjoy the First Amendment right to free speech, legal scholars have argued that right does not extend to influencing people under false pretenses. According to former tobacco industry lawyer Stephen Susman, when it comes to fossil fuel companies and supporters funding their own research on climate change, if “they knew the information they were spreading was false and being used to deliberately influence public opinion— that would override their First Amendment rights.”

This question may soon be playing out in the courts.

History of the science

Research on climate change goes back over a century. Spencer Weart’s  The Discovery of Global Warming lays out the long trajectory: from realizing GHGs trap heat and help warm the planet, to identifying them, to tracking GHG emissions into the atmosphere and oceans from the burning of fossil fuels, to measuring the effects.

The research was developed enough that a 1965 report to the Johnson administration, Restoring the Quality of Our Environment, discussed the increase in global carbon dioxide emissions and the possible dire effects. In a 1969 memo, President Nixon’s Democratic adviser, Daniel Patrick Moynihan, wrote that it was “ pretty clearly agreed” that carbon dioxide levels were rising fast and would increase the average temperature near the earth’s surface, and that such dangers justified government action.

Attempts to water down the implications of the science soon followed. Science historian Naomi Oreskes and others found that, in 1983, a committee of the U.S. National Academy of Sciences chaired by physicist William Nierenberg  reframed the growing consensus around anthropogenic warming as a “nonproblem” that would have limited effects humans could adapt to, as with past changes in human history. Nierenberg was cofounder of the conservative George C. Marshall Institute, and – as documented in Oreskes and Eric Conways’s  Merchants of Doubt (2010) – part of a  group of government scientific advisers that went from Cold War warriors supporting nuclear weapons to staunch corporate defenders questioning the science on tobacco smoke, acid rain, the hole in the ozone layer, and eventually climate change science, among other issues.

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