Climate Activists Should Use Antitrust Laws Against Big Oil – CleanTechnica

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A year ago, Puerto Rico sued a number of fossil fuel companies — including Big Oil stalwarts such as ExxonMobil, BP, Chevron, Shell, and ConocoPhillips. The lawsuit claimed the companies misled the public about climate change and delayed a transition to clean energy. It also said the companies promoted fossil fuels without adequately warning their customers about the dangers.

It went on to say fossil fuel companies have known for decades their products would cause global warming because of research done by their own scientists, yet they went ahead doing business as usual. The law is fully capable of imposing consequences on those who sell unreasonable dangerous products. Such product liability lawsuits are common in state and federal courts all across the country. Notable examples are product liability suits against asbestos and tobacco companies. So Puerto Rico won, right?

Actually, no, it did not. The normal statute of limitations that applies to civil wrongs — like deliberately and knowingly destroying a perfectly good planet in the pursuit of enormous profits — is three years. Most of the damage that Puerto Rico was complaining about was done by Hurricane Maria in 2017. A judge ruled recently that the island missed the statute of limitations by four years — 2024 minus 2017 equals 7 years, not three — and therefore the suit was dismissed.

Lawyers will tell you that there are a number of follow-on consequences that can keep a statute of limitation from expiring, but for now, the suit by Puerto Rico has been dismissed. So that’s that, right?

Big Oil And Antitrust Law

Maybe not. In an op-ed for Bloomberg Law, Aaron Regunberg of Public Citizen and Zephyr Teachout of Fordham Law School noticed something unusual in the pleadings filed by Puerto Rico. Regunberg is the director of the Climate Accountability Project at Public Citizen, which seeks to hold Big Oil companies legally accountable for their climate crimes. Teachout is an American attorney, author, political candidate, and professor of law specializing in democracy and antitrust at Fordham.

They noticed the complaint filed by Puerto Rico included an allegation that the Big Oil defendants violated antitrust laws. They argue that antitrust law “is a remarkably effective and precise way to frame claims about the fossil fuel industry’s climate change denial, as well as the ongoing strategies that plaintiffs assert the oil giants continue employing to block the clean energy transition to this day.

“Antitrust laws protect open thriving markets and prevent collusive incumbent-protection schemes that slow down innovation and freeze technologies in place — the very crux of what oil corporations sought to do by working together to block renewable competitors from challenging their control of the energy market.”

In support of their position, they cite a 1988 memo by a senior public affairs manager at Exxon which acknowledged that greenhouse gases “cause disproportionate warming of the atmosphere,” that “the principal greenhouse gases are by-products of fossil fuel combustion,” and that “climate models predict a 1.50°C to 4.50°C global temperature increase, depending on the projected growth of fossil fuels.”

That memo then advocated for the industry to disrupt public perception of science by “emphasiz[ing] the uncertainty in scientific conclusions” in order to undermine the “non-economic development of non-fossil fuel resources.”

It doesn’t take a Rhodes Scholar to draw a straight line between that memo and the unhinged drivel spouted yesterday at the UN by America’s so-called president. In her post on Substack today, Heather Cox Richardson relates that after that debacle, foreign affairs journalist Ishaan Tharoor reportedly receiving a text from a senior diplomat at the UN saying, ‘This man is stark, raving mad. Do Americans not see how embarrassing this is?”

The Big Oil Playbook

Regunberg and Teachout go on to say that Big Oil has used “capture-and-kill” tactics to shut down the development of alternative energy technologies before they could challenge fossil fuels. Scientists at Exxon invented the lithium battery in the 1970s. The company began developing electric motors and hybrid vehicles, too. But in the 1980s, Exxon shut down the lithium battery program and other related projects, shelving countless promising patents. The hybrid car project was packed up and delivered intact to Toyota in Japan. Was Exxon the grandfather of the Prius? Maybe so.

Ed Garvey, a geochemist at Exxon during the 1980s, came to believe the company had a goal of suppressing clean energy development. “I saw all of that potential there, at least at that point in time, to really solve the problem in many different ways.” But rather than pursue that potential, Big Oil  fought market entry of clean energy alternatives.

Exxon was not alone in this nefarious plot. Stanford Ovshinsky was one of the principal inventors of solar energy and the founder of Energy Conversion Devices, which manufactured flexible solar panels. His company had business dealings with Texaco — now Chevron — that led him to believe the industry wanted to “put you out of business, rather than building the business.”

The publicly available evidence suggests Big Oil is still working to constrain renewable energy. While their claims have now shifted to complaints about how wind turbines kill whales, solar panels cause cancer, and natural gas is a climate solution, all totally bunk nonsense, “The strategy still appears anti-competitive — block alternatives to fossil fuels from gaining market share by suppressing consumer demand and shutting down clean energy projects,” Regunberg and Teacnout suggest.

The Charlie Kirk Angle

Emily Atkin, the creator of the HEATED climate action blog, has an interesting addition to this story. On September 18, she wrote, “Charlie Kirk was a fossil fuel industry plant,” who “built his massive platform for racism, sexism, transphobia and climate denial in part by using anonymous funding from Big Oil. Turning Point USA, the group Kirk founded […] has managed to hide much of its funding sources. Roughly half of the group’s $40 million in income in 2020 came from 10 anonymous donors, NBC News reported.

“In 2017, Kirk admitted that some of the group’s anonymous donors ‘are in the fossil fuel space.’ Speaking to The New Yorker’s Jane Mayer [author of the book Dark Money], Kirk disclosed that he’d fundraised for TPUSA at the annual meeting of the Independent Petroleum Association of America as well as the 2017 board meeting of the National Mining Association. In those meetings, Kirk promised oil and gas companies he’d fight ‘the myth that fossil fuels are dirty’ and target the ‘leftist professors’ on college campuses who ‘perpetuated the myth.’

“Over the next nine years, Kirk worked to chip away at young Americans’ rising concerns about climate change. He did this by claiming climate science is still debated — and then peddling the conspiracy theory that all climate policies are a Democratic bid for government control. ‘A tyrant’s fantasy is to have a massive green economy transition,’ he said in 2023. ‘You can get rid of private property, you can control people’s movements. It’s fundamentally the abolition of civilization as we know it,’” Atkin wrote.

Antitrust Is A Promising Strategy

The antitrust argument could be the bunker-busting bomb needed to make climate litigation successful. Readers may recall that Big Oil defenders have used something similar by threatening to use Racketeer Influenced and Corrupt Organizations laws — RICO for short — to browbeat companies, financial institutions, and even state governments into abandoning climate litigation and ESG policies.

How fitting would it be if a combination of antitrust and RICO legal theories aligned to finally pierce the cone of silence that surrounds the activities of Big Oil over the last half century? Regunberg and Teachout end their analysis by saying the dismissal of the case brought by Puerto Rico does not preclude future climate antitrust suits from being successful. “We expect cases brought in a timely manner to succeed and to hold the oil industry accountable.”