3 July 2008
Guest:
Stephen Susman, founding partner of the law firm Susman Godfrey. He recently filed a pioneering global warming lawsuit against ExxonMobil, BP, Chevron, ConocoPhillips and twenty other oil, coal and electric companies, on behalf of residents of the Alaskan Native coastal village of Kivalina.
AMY GOODMAN: Earlier this week, a judge in Georgia blocked the construction of a coal-fired power plant, because the plant did not set limits on carbon dioxide emissions. In what's being described as an unprecedented ruling, the judge said the plant could not receive an air pollution permit unless it limits its emissions.
Today, we're going to look at the rapidly growing field of global warming litigation. I'm joined here in Aspen, Colorado by the attorney Stephen Susman. He's the founding partner of the law firm Susman Godfrey. Earlier this year, he helped file a groundbreaking lawsuit on behalf of 400 villagers in the Alaskan town of Kivalina. They're being forced to relocate because of flooding caused by global warming.
The suit accuses twenty oil, gas and electric companies of being responsible for emitting millions of tons of greenhouse gases, causing the Arctic ice to melt. Companies named in the suit include ExxonMobil, Chevron, BP, ConocoPhillips and Peabody. The suit also accuses eight of the corporations of being involved in a conspiracy to mislead the public about the causes of global warming.
Susman and his legal team have adopted a legal strategy similar to that used by lawyers who fought Big Tobacco in the 1990s. Stephen Susman was also involved in that litigation: he was an attorney for the tobacco giant Philip Morris.
Stephen Susman also recently represented the Texas Cities for Clean Air Coalition in their successful effort to block the energy company TXU from building ten new coal-burning power plants. The case was featured in Robert Redford's documentary Fighting Goliath: Texas Coal Wars.
Attorney Steve Susman joins me here in Aspen, Colorado. We welcome you to Democracy Now!
STEPHEN SUSMAN: Pleasure to be here.
AMY GOODMAN: Tell us about this lawsuit.
STEPHEN SUSMAN: Well, this lawsuit was—in these cases, you need to find the right plaintiff. This was the perfect plaintiff, because it was a village that has—a Native village that has standing under federal law to bring a lawsuit. This is not a class action. The problem with all the tobacco cases, initially, was that they had to be brought as class actions. Individuals' injuries were too different to be asserted in a class action, so none of the tobacco cases were certified for class treatment. They became successful when the lawyers figured out a way to represent the states, and they didn't have to be class action, so the state was the perfect plaintiff seeking Medicaid reimbursement. Here, we have a perfect plaintiff: they have federal law standing to sue for injuries to their village, because they're a Native tribe—it does not have to be a class action—and they have sustained the most direct kind of injury and of interest from global warming.
An increase in the ambient temperatures in the Arctic prevents the sea ice from forming on the seaward side of this six-mile-long barrier island. And as a result, the harsh storms during the fall and winter wash over the island and are about to wash it away. So there is a direct consequence of the increase in temperatures. You know, you can think of other harms from global warming that are more indirect, like damages from storms. Kivalina was one of those, where, you know, well, the storms—the global warming warms the Gulf Stream, the Gulf Stream creates more severe weather, where the causation is more tenuous. Here, it was direct, people directly injured. The Corps of Engineers says that it will cost between $100 million and $300 million to relocate them to the mainland, which has to be done. And so, they were the perfect client.
They asked us to file this lawsuit on their behalf. A group of lawyers organized themselves and are doing it. And we hope that the court will let us proceed with our claim that many of the defendants in our case—the case is very simple. The case is a nuisance case. The theory is basically, you can't do something on your property that prevents the enjoyment of mine. I mean, if you were barbecuing and ashes from your barbecue pit fell on my house and burned it up, that's a perfect nuisance case, and you would be liable under the common laws, as long as we've had common law. Now, this is a little more direct, because what they're putting in the atmosphere hurts everyone in the world, for sure, and there are a lot of people putting the stuff up there. So it's very difficult—impossible to get all of the wrongdoers in the same courtroom. And that's where we're testing the theory.
So that's why we filed the lawsuit. We hope that we will be able to proceed with the lawsuit. And all we are seeking here is not a big pile of money, but to have the oil companies relocate these people to the mainland. If they don't want to relocate them, let them build a barrier, some kind of barrier wall around the island so they stay where they are.
AMY GOODMAN: Now, this isn't the first lawsuit brought around the issue of global warming—
STEPHEN SUSMAN: No.
AMY GOODMAN: —but it's the first one brought around the issue of conspiracy to deceive.
STEPHEN SUSMAN: That's true. This is the first lawsuit where the claim is made that the defendants, principally organized by ExxonMobil, have organized and orchestrated collusively a movement to deceive the public about whether global warming was occurring, whether it was occurring by cause of manmade activity or something else, and as a result, the public didn't demand changes and let this go on for so long.
I mean, one of the most phenomenal things about the defendants—I can only call it chutzpah—is that they have now filed on us, which I have here—they've filed on us, June 30th, eight motions to dismiss our lawsuit. One of the motions is that our claim is barred by the statute of limitations, that these 400 people waited too long to file their lawsuit. Can you imagine that? And yet, that's why the conspiracy did injure us. I mean, people did not realize until fairly recently what was causing all this to happen and who was causing it. And the defendants, yet, come in and say, well, you waited too long to file your lawsuit.
AMY GOODMAN: How do you prove that these companies worked in conspiracy? I mean, you've got the biggest oil companies in this country, like ExxonMobil, like Chevron, and then you've got BP, you've got ConocoPhillips.
STEPHEN SUSMAN: Well, I am confident—first place, there's a lot of public material on this about the denial community, how Exxon and others have financed organizations that are claiming that—and bogus science that claim that global warming is not occurring, that it's a natural phenomenon. And so, you can go on the internet and get a lot of activity of these organizations that they finance and support and who the members are. And so, you begin putting things together.
Now, obviously, you normally—because conspiracy is not something people do in public—it's done in the, you know, candlelight in the tower. Obviously, we need discovery from the defendants. And it's our hope that we will find in their files documents very much like the plaintiffs' file and in the tobacco companies' files, the tobacco papers.
AMY GOODMAN: You mean, in your files?
STEPHEN SUSMAN: No, I mean—yeah, well, I guess in my files, yes, and in the files of Philip Morris and others who I was representing—
AMY GOODMAN: You were the general counsel for Philip Morris.
STEPHEN SUSMAN: No, I was one of their national counsel defending the class actions brought—I was set to go to trial in Mississippi against Mr. Scruggs, who was the plaintiffs' lawyer at the time.
AMY GOODMAN: Trent Lott's brother-in-law.
STEPHEN SUSMAN: That's right, who's now chopping stones somewhere. But I was set to go to—I was defending the tobacco industry, but one of our big problems was that they had alleged a conspiracy of the tobacco companies to deny that cancer was being caused by smoking. And when they got in the files, they found all these memos from executives—let's finance this project, let's pay this doctor to do this—and communications among the tobacco companies, and they were members of a trade association. Well, it's our hope that—and I believe we will find climate or global warming papers, or whatever you want to call them, when we get into the discovery against these defendants, that establish that they knew what they were doing and they participated in it.
AMY GOODMAN: Well, you must know what these lawyers for the other side are feeling like, because you were one of them, when it came to Big Tobacco.
STEPHEN SUSMAN: Yeah, they are thinking this is ridiculous.
AMY GOODMAN: Is that what you thought?
STEPHEN SUSMAN: Huh?
AMY GOODMAN: When the big—
STEPHEN SUSMAN: Yes, or I would have represented the plaintiffs in the tobacco cases. I thought it was ridiculous. I thought these theories were bizarre. They had never been tested. The tobacco companies will never settle. And so, why should I take on such a risky thing? And so, I turned down an opportunity to represent Massachusetts and Texas as plaintiffs. A month later, Philip Morris—
AMY GOODMAN: And again, those plaintiffs were bringing suit against Philip Morris and the other companies for…?
STEPHEN SUSMAN: Medicaid—reimbursement of Medicaid expenses that they had paid for citizens for cancer treatment. Then I went to work for Philip Morris. And of course, a few years later, when the tobacco companies paid billion dollars and public health was changed in the world forever, because you cannot smoke cigarettes anywhere now, when that happened, of course, I realized, boy, did I make a mistake. I was on the wrong side of the docket. And so, now in my life, as I get older, I have an opportunity to be on the right side of the docket, maybe.
AMY GOODMAN: We're talking to Stephen Susman. He's with us for the hour. When we come back from break, we'll also be joined by one of the leading climate scientists in this country—he's Harvard physicist John Holdren—and we'll talk about the issue of, well, he calls it "global climate disruption."
[break]
AMY GOODMAN: We continue with our guest Stephen Susman, a leading lawyer on a novel case that's right now been brought on behalf of the Kivalina islanders, Native Alaskan people who have to be moved, because of global warming, to the mainland.
We also are talking about the overall issue of global warming, and I'm joined here in Aspen by one of the country's top scientists, John Holdren. He's professor of environmental policy at Harvard's Kennedy School of Government and director of the Science, Technology and Public Policy Program at the Belfer Center for Science and International Affairs. He is also director of the Woods Hole Research Center, and just completed a term as board chair of the American Association for the Advancement of Science. During the '90s, he advised President Clinton as a member of the President's Committee of Advisors on Science and Technology. In addition to global warming, John Holdren's research has focused on energy technology, nuclear nonproliferation and arms control.
Professor Holdren, welcome to Democracy Now!
JOHN HOLDREN: Thank you. Good to be here.
AMY GOODMAN: This term "global warming," you don't like it.
JOHN HOLDREN: I don't like the term "global warming," because it's misleading. It implies something that's mainly about temperature, that's gradual, and that's uniform across the planet. And in fact, temperature is only one of the things that's changing. It's a sort of an index of the state of climate. The whole climate is changing: the winds, the ocean currents, the storm patterns, snow packs, snowmelt, flooding, droughts. Temperature is just a bit of it.
It's also highly non-uniform. The largest changes are occurring in the far north in the Arctic, in the Antarctic Peninsula in the far south. It is certainly not gradual, in the sense that it is rapid compared to the capacity of ecosystems to adjust. It's rapid compared to the capacity of human systems to adjust.
AMY GOODMAN: How extreme is the situation right now?
JOHN HOLDREN: I think that most people, even most scientists, continue to underestimate how far down the path to climate catastrophe we've already traveled. We are committed, the United States and 190 other countries are committed, under the Framework Convention on Climate Change to avoid dangerous human interference in the climate system. And the fact is, it's already too late to do that. We're already experiencing dangerous interference. Floods, major floods, are up all over the world. Wildfires are up in almost every region of the world where wildfires have been a problem. Wildfires erupt fourfold in the last thirty years in the western United States.
AMY GOODMAN: What causes wildfires?
JOHN HOLDREN: Wildfires are a result of temperature conditions, of soil moisture conditions, and of course something has to start it. It may be lightning. It may be a stray match or a cigarette. But the point is, when it is drier and hotter, you get more wildfires, and that's what we're seeing. We're seeing more heat waves. We're seeing more droughts. We're seeing impacts on food production in China and India as a result of changes in the monsoons.
The World Health Organization estimated that climate change was already causing more than 150,000 deaths per year in 2000. The World Health Organization is engaged in an update of that work. We'll soon have a new estimate, a more recent estimate, and it will be larger, in terms of how many people are already being killed by climate change, by floods, by heat waves, by droughts, by expanded range of malaria, and much more.
AMY GOODMAN: Stephen Susman is referring to this global warming denying movement. In fact, it's one of the core theories in the lawsuit, conspiracy to defraud the American people, to mislead the American people and people around the world. How does it affect the scientific community? What do you see? I mean, you call it "global climate disruption." What is this denial movement?
JOHN HOLDREN: Well, the denial movement has flourished, in part, because of the preoccupation of the media with balance and with controversy. And so, if you have 3,000 scientists working for years and producing a report that says our considered opinion is the climate is changing by this much, it's changing this fast, it's having these effects, and you have two or three so-called denialists or a few small think tanks, some of which were certainly funded by Exxon, saying the opposite, they get equal time. The deniers get equal time in the newspapers, on the television.
Another problem is that a denier can tell a lie in a single sentence that takes a scientist three paragraphs to rebut, but the scientist never gets the three paragraphs in the sound bite culture that our media represent. And so, the denialists, even though they are small in number, they have no credible arguments, very few of them have any scientific credentials, get attention out of all proportion to their credentials, the merit of their arguments, and that delays the generation of public understanding and political will to do the things we need to do to address this challenge. There are a lot of things we can do, but we have been delaying doing them, in part because the so-called skeptics, or more accurately deniers or denialists, have basically obscured reality for much of the public and indeed for many of our policymakers.
AMY GOODMAN: How do you, as scientists, deal with these industry-funded scientists?
JOHN HOLDREN: Well, first of all, I wouldn't make a blanket condemnation of industry-funded scientists. Industry is funding some perfectly good work. Oil companies are funding work at Stanford and Princeton and MIT and Harvard on solutions, for example.
But the issue of the skeptics and their effect on public understanding and public policy is one that scientists have had to counter in the only way they can, which is doing rigorous analysis, publishing their results, taking the opportunities to talk on the radio and on television and be interviewed by the newspapers, and giving public talks. I give, on the average, a couple public talks a week on this issue. I meet with policymakers all the time.
I chair—I co-chair the National Commission on Energy Policy, which is an independent bipartisan group, and my fellow co-chairs, one of them is the CEO of the biggest electric power company in the United States, one of them is the former head of the Environmental Protection Agency under the senior President Bush—half Republicans, half Democrats. We have published unanimous reports saying that the country has to come together and address the climate change challenge, and we have to do it by putting real restrictions on emissions of greenhouse gases, which are the main cause of this.
It is not impossible to overcome this skeptic smokescreen that has been out there, but it's a lot of work. It's happening. We're getting there. But we should have been getting there two decades ago. Dr. Jim Hansen in 1988, twenty years ago, presented in a Senate hearing the first really convincing evidence that climate change caused by human activities was now evident in the temperature measurements made around the world. That was twenty years ago. That should have been the call to action, but we've had twenty years of inaction, in part because of the deniers that Stephen Susman is now engaged in suing.
AMY GOODMAN: I want to talk about Jim Hansen for a second—yes, James Hansen, the NASA top climate scientist. During an interview on NPR last week, Hansen called for the chief executives of oil companies to be tried for their role in spreading disinformation on climate change.
JAMES HANSEN: These large energy companies are guilty of crimes against humanity, if they continue to dispute what is understood scientifically and to fund contrarians, and if they push us past tipping points that end up destroying many species on the planet and having a huge impact on humanity itself.
AMY GOODMAN: Dr. John Holdren, do you agree with James Hansen's statement that the CEOs of large energy companies are guilty of, should be tried for crimes against humanity?
JOHN HOLDREN: I couldn't really say. I'm not qualified to assess what the heads of oil companies, past or present, have done in this domain. My understanding is that Exxon, in particular, did fund a variety of small think tanks to generate what amounts to propaganda against understanding of what climate change was doing, the human role in causing it. Whether that sort of activity really constitutes crimes against humanity is something for people more embedded in the legal system than I to judge. I wish they hadn't done it.
I think the current generation of leaders of the major oil companies are considerably more enlightened about this than the last generation of leaders. And in fact, John Browne, the previous head of BP, was the first head of a major oil company, now about a decade ago, to say climate change is real, it's serious, it's dangerous, and BP is going to have to participate in the solutions. Shell soon followed. I think today the heads of most, if not all, of the major oil companies do accept, certainly in their public statements, that climate change is real and dangerous and that the oil companies and everybody else is going to have to participate in the solution.
So I guess I would find the statement that all oil company CEOs, past and present, are guilty of crimes against humanity is maybe a little bit over the top. I would, however, say that Jim Hansen is certainly one of the most distinguished climate scientists in the world. Whether he's one of the most informed analysts of the legal implications of who has done what and to whom is a different question.
AMY GOODMAN: Steve Susman, as the national counsel for Philip Morris, seeing those CEOs of the Big Tobacco companies standing in Congress with their right hands up, swearing that tobacco didn't cause cancer, what are your thoughts today?
STEPHEN SUSMAN: Well, it was a terrible piece of evidence that we had to deal with, defending tobacco and defending the lawsuits, because what happens to science changes. Dr. Hansen is wrong about the current executives, because the current executives have now gotten religion. I mean, they all are falling over each other to say global warming is occurring and we're spending hundreds of millions of dollars to do something about it. So it's almost like a confession of "we were wrong."
Now, the question is—so the past ones, the past ones may have—I don't think, though, they were ever called before Congress to testify under oath that global warming was not occurring. If they had, it would be a great piece of evidence for us. But that was a harmful piece of evidence to tobacco, because we were able to show—the plaintiffs were showing this congressional testimony, which was on television or a movie or whatever it was, and they were saying, look, these guys now admit—well, because in our cases, when we were defending the tobacco companies against the state lawsuits, we were already of the position of admitting that smoking can be very dangerous for your health. And we—our big defense was, well, when people do it, they assume the risk. You know, you don't have to smoke, and people have known about the danger for a long time.
One thing about our lawsuit, by the way, is that there's no assumption of the risk. No one assumes the risk. I mean, we live—I mean, no one is assuming the risk of carbon dioxide in the atmosphere. And particularly this Native village, the plaintiffs in my lawsuit, they don't create much carbon dioxide in the air. So the victims are frequently the people who are doing less to contribute to the problem. But we don't have that kind of testimony here, but I think the fact that the companies are now admitting that global warming is real and that we have to do something about it and that they have in the past contributed is a great fact for us in our lawsuit.
AMY GOODMAN: I want to go to an excerpt of the documentary—go to the lawsuit that has been filed on behalf of the Inupiat villagers in Kivalina, the brief excerpt of the documentary Losing Ground. It was written, directed and produced by Jenny Monet. This is Colleen Swan, tribal administrator of the Native village of Kivalina.
COLLEEN SWAN: Our people have been talking about relocating the village since 1952. The little island that we live on is becoming narrower, and it's eroding faster. It's not only caused by the natural environment—you know, the winds, the waves and—but it's also being caused by activities of man.
We have to move. Our people's lives are in danger. We are to a point where we have to be prepared to evacuate. It isn't a question of, you know, if it happens; it's a question of when, when it happens.
AMY GOODMAN: Can you talk about, further, what is happening to the people there, Steve Susman, in Kivalina and how you found this group of Inupiat villagers, Native Alaskans?
STEPHEN SUSMAN: Well, what is happening to them is that—as they describe: I mean, the earth on which their village is located is being washed away, for two reasons. One, the permafrost is not forming, and the other is that the sea ice doesn't form, so the water just comes and washes away. And you can see these huge holes. The houses, the foundations are being lost.
Now, there's much more severe injury that they are suffering, which we do not allege in our lawsuit intentionally. I mean, their way of life has changed, their culture of hunting, their—all of their traditions, their native way of living. We don't allege that, because there's a problem in these cases of whether someone has standing. If you suffer an injury common to everyone in the world or common to a whole lot of people, the courts may say you don't have standing to complain. So the point is, you have to have standing. You have to show I have a particular different kind of injury than other people. And the loss of their ground under their homes is a different kind of injury, so that's the kind of injury we are alleging. That's what's going on there, and that's what we're trying to stop.
AMY GOODMAN: So what is going to make this suit different from the other suits, in terms of how the courts deal with them? One of the rationale of the courts is this is about legislation, this shouldn't be in the courts.
STEPHEN SUSMAN: Yeah, I mean, their big defense is that this is a political issue, that Congress should have to decide how much CO2 is too much, and the courts should not have to decide it. Now, clearly, if you ask any lawyer, does that make any sense? No. The courts have, for hundreds of years, decided whether—I mean, well, let's take the case of tobacco. Congress had the power to decide how much nicotine was too much nicotine. That didn't prevent individuals pursuing the tobacco companies and recovering for producing a dangerous product. Congress could decide about products; there's a Product Safety Commission that could regulate. That doesn't prevent the courts from adjudicating product liability lawsuits, which they do all the time. So the courts have a role deciding was your conduct unreasonable, and if so, how much should you have to pay for it. It's not a unique question.
Now, it is true that there are three other courts that have dismissed these lawsuits on the ground of political question, not a justiceable question. We think those courts are wrong. They were trial courts. The cases are now pending in the Second Circuit, the Ninth Circuit and the Fifth Circuit Court of Appeals. We might have a decision pretty soon. It may go to the Supreme Court someday. And so, our hope is that those decisions will be reversed as wrong. But even if they stand, we are the only case that has a conspiracy allegation, and we think that makes our case different, because courts all the time—there are criminal trials going on throughout this country every week about whether someone participated in a criminal conspiracy. So that's the stuff of which courts are made, to decide whether there was a conspiracy, and did it harm someone.
AMY GOODMAN: I want to ask you, Steve Susman, when we come back from break, about your earlier suit against the coal plants of Texas, TXU. And, Dr. Holdren, I want to ask you about your work in China, at a university there, and about the overall issue of global climate disruption and how it can be stopped.
http://i3.democracynow.org/2008/7/3/groundbreaking_lawsuit_accuses_big_oil_of
