Meet the Lawyer Trying to Make Big Oil Pay for Climate Change

by Geoff Dembicki (Vice.com) The attorney who won a $200 billion settlement from tobacco companies in the 90s has set his sights on an even bigger target. When you want to sue the largest, most powerful companies on the planet, Steve Berman is the guy you call. ... He represented auto dealers in a $1.6 billion lawsuit against Volkswagen for cheating on diesel emissions.

He is suing five of the world’s most powerful oil companies for causing climate change. He represents Oakland and San Francisco in a lawsuit filed last September demanding that Exxon, Shell, Chevron, ConocoPhillips, and BP pay billions for sea walls and other defenses against ocean rise.

Just like with tobacco, the case could hinge on whether these companies lied to the public about the dangers of their business model. Berman has evidence that companies like Exxon knew burning oil causes climate change as early as the 1950s. Internally, oil companies took steps to protect their offshore oil rigs and Arctic pipelines from global warming while publicly they denied the science—the same way cigarette makers did research into cancer while denying their product was harmful.

The stakes are even higher in his big oil lawsuit. Berman is not just trying to get oil companies to pay for seawalls in the Bay Area. In a broader sense he’s attempting to hold them responsible for endangering all human life on earth. “This is different in kind from anything else,” Timothy Crosland, the director of a UK-based climate law group called Plan B, told me. “Once you get started, you get one case that goes through, this is an avalanche. It’s got the potential really to bring down the fossil fuel companies.”

Berman now had a game plan for defeating powerful industries: Accuse them of misleading the public to protect revenues, then find plaintiffs who are suffering the consequences. In the late 2000s, he heard about a coastal village in Alaska called Kivalina that would have to be relocated because of rising oceans. The move could cost up to $400 million, according to his lawsuit, and the Army Corps of Engineers said climate change is to blame. Berman sued Exxon, Chevron, BP, ConocoPhillips, and 20 other fossil fuel producers on behalf of the villagers, arguing these companies spread doubt and confusion about climate change knowing communities such as Kivalina are in danger. Exxon, for instance, had run full-page New York Times ads about “unsettled science.”

A federal court dismissed the lawsuit, deciding that who’s to blame for climate change is a job best left to entities like Congress or the White House. But the real issue was causation. How can you prove that oil dug out of the ground by Exxon is causing a tiny Alaskan village to disappear?

“There is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time,” wrote US District Judge Saundra Brown Armstrong. It’s a tough obstacle to surmount. “In climate change there’s a lot of diffuse actors,” said the University of Calgary’s Olszynski. “It’s not just the oil companies.”

Whereas Kivalina was filed in federal court, he wants to represent the cities of San Francisco and Oakland in California state court, which he thinks may be less likely to decide the case raises political questions outside of its jurisdiction.

You could make the same argument about the coal industry. Or carmakers such as General Motors. “If the oil company took the barrel of oil out of the ground but it was consumed in the car, how do you apportion liability?” Olszynski asked.

As far as Berman is concerned the story isn’t over. On climate change he thinks it’s just getting started. If a judge decides his case can be heard—a big if, considering that no lawsuit against big oil has made it to that stage—then Berman can call on Exxon, BP, Shell, ConocoPhillips and Chevron to make internal reports and research into climate change available. “[I’m] dying to get to those documents,” he said. “I’m convinced they’re going to be smoking hot.” READ MORE