Energy vs Climate

FROM FIBS TO FINES: Climate Disinformation, Lawsuits & Their Ripple Effects

• Energy vs Climate • Season 5 • Episode 12

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[00:00:00] Ed: Ed here. If you're looking for a podcast that dives deep into environmental issues facing coastal communities and beyond, then I'm excited to tell you about Sea Change. Produced by our friends at WWNO New Orleans Public Radio and distributed by PRX. Nominated for Best Green Podcast C Change brings you stories that illuminate, inspire, and sometimes enrage.

[00:00:23] Ed: But above all, remind us why we must work together to solve the issues facing our warming world. We have a lot to save, and we have a lot of solutions. It's time to talk about a C Change. Listen to new episodes of C Change every other Tuesday. wherever you get your podcasts and tell them energy versus climate sent you.

[00:00:49] Ed: I'm Ed Whittingham and you're listening to energy versus climate the show where my cohost, David Keith, Sarah Hastings Simon and I debate today's energy challenges, highlighting the Canadian context. On May 22nd, we recorded a live webinar with Dr. Ben Franta, a senior research fellow in climate litigation at the Oxford Sustainable Law Program.

[00:01:10] Ed: and the founding head of the Climate Litigation Lab. We called the show, From Fibs to Fines, Climate Disinformation, Lawsuits, and Their Ripple Effects. This is actually our second show this season, touching upon climate disinformation, which is an indicator, unfortunately, of its prevalence these days. We covered a wide range of topics with Ben, and it's a conversation that I think you'll enjoy.

[00:01:32] Ed: Now here's the show. I may have said this on the pod, It's Before there are five stages of corporate denial of an environmental problem. First companies deny that there is a problem. Then they deny that they are part of a problem and they deny there's any technology to fix the problem. And then they deny that they have any money to pay for the technology to fix the problem.

[00:01:54] Ed: And then finally they capitulate and start fixing the problem or they get creative and try to get back to denying that there's a problem. And with the climate problem, it seems like we've looped through those stages more than a few times over the decades. And. While we think or would like to think that we finally put the boot to oil and gas companies denying that there is a climate problem or that they are part of the problem, unfortunately a recent University of Michigan study suggests that nearly 15 percent of Americans deny that climate change is real.

[00:02:27] Ed: We'll put a link to that study in the show notes. And so for those of us who work on the climate problem for which we need strong public support when the cost of decarbonization goes up and up, this is obviously. Disturbing and sobering and perhaps even a bit suspicious as well. So coming fast on the heels of our show on misinformation and disinformation in the EV industry, David, Sarah and I thought it would be timely to do a show on climate disinformation that emanates from specifically the oil and gas sector.

[00:02:58] Ed: We're interested in the history of climate disinformation and whether exposing it and pursuing oil and gas companies through the legal system can bring about real. Policy changes and behavioral changes that actually helps the climate. And our guest today is terrifically qualified to speak on the topic.

[00:03:17] Ed: Dr. Benjamin Franta is a Senior Research Fellow in Climate Litigation at the Oxford Stable Law Program and the founding head of the Climate Litigation Lab. He holds a slew of academic degrees. Including a PhD in Applied Physics from Harvard University, a PhD in the History of Science from Stanford, and a JD from Stanford Law School.

[00:03:38] Ed: Now his research, Ben's research focuses on climate litigation worldwide. So it makes sense that he is also a licensed attorney and a member of the State Bar of California. Uh, but he joins us today. from Oxford in the UK. Welcome, Ben. Thanks so much, Ed. So Ben, let's get down to it first. I just want to start to sort of set the, the, the terminology framework for people.

[00:04:04] Ed: Can you just quickly explain misinformation versus disinformation versus greenwashing? 

[00:04:09] Benjamin Franta: Sure. You know, it depends on who you ask, but the way that I use them is this. Misinformation is a mistake. It's not intentional. It's, it's something you believe that's not true. Maybe it gets propagated through society unintentionally.

[00:04:24] Benjamin Franta: Disinformation is deception. It's intentionally, you know, muddying the waters or, or telling people something that isn't true. And then of course, greenwashing is when a company Usually it's a company, but it doesn't have to be, but often it's a company portraying its activities or its products as more sustainable or environmentally friendly or less damaging than they actually are.

[00:04:49] Benjamin Franta: Um, so those are some basic definitions for some kind of loose terms that are, that are used quite a bit in this space. 

[00:04:55] Ed: Thanks. That's handy. And we're going to flip sort of between the three, misinformation, disinformation, greenwashing, and a fourth, uh, if we just considered old fashioned, Influencing through whether it be spreading money around or CEOs calling people and putting pressure on them.

[00:05:11] Ed: So we'll, we'll touch upon all of them. Maybe Ben, it'd be interesting because you started on applied physics and, and now you're running this climate litigation program in Oxford. Yeah. I'd love to hear it. Just give us a little sense of your journey to getting to this point. 

[00:05:24] Benjamin Franta: Yeah, thanks Ed. I mean, it was quite a journey and, you know, I got the privilege of knowing David, you know, during part of that journey.

[00:05:31] Benjamin Franta: And when I was studying physics at Harvard, and you know, I got into climate through actually through archeology, because first I went to grad school to be an archeologist, actually to be a scientist in archeology. And when I was doing that, I learned about paleo climate science. And I learned about, you know, our modern problem of human caused climate change and became really interested in the problem.

[00:05:56] Benjamin Franta: So I went back to physics, worked on solar energy materials, science, and you sort of have the assumption as a scientist that the problem was scientific and technological ultimately, that, you know, in order to solve this, we needed to invent a more efficient solar cell or something like that. During that process, I got involved in climate activism back when the fossil fuel divestment movement was just starting.

[00:06:20] Benjamin Franta: This was back in 2012 or so, over 10 years ago now. And through that process, essentially became educated again, about the political realities of climate change and the, the sort of, um, unwillingness of institutions to take steps, progressive steps to solve the problem. You know, I was at Harvard at the time.

[00:06:41] Benjamin Franta: I was very frustrated with the administration of Harvard and its reluctance to move investments out of fossil fuels, which, you know, eventually a few years ago, it said it was doing at least somewhat. And then, you know, I thought when I finished that PhD, well, if the problem is not ultimately technological, but it's political and social, then maybe I need to move where I put my energies, if I'm going to make the impact that I want to make.

[00:07:07] Benjamin Franta: And so, uh, yeah, I went into history of science, which might sound a little random because that's a pretty esoteric field in some ways. But I went into it to study what's the history of climate change delay and climate change obstruction. Why haven't we made more progress on climate change in the last 30, 40 years?

[00:07:28] Benjamin Franta: You know, can we get at that in a rigorous way, in a scholarly way? That led me to start working on What the oil companies knew about climate change and when, you know, when I started that process, I, I didn't go into it assuming that the problem was the oil and gas industry, you know, I sort of just didn't, didn't know, you know, I'd seen some of the influence of the industry at Harvard and at MIT and so on, but I didn't know.

[00:07:54] Benjamin Franta: you know, I didn't really know, but it was through that, you know, six year long process of finding documents from the industry and studying that history that I saw that when we see historically climate delay and obstruction, it's pretty much all the time, virtually always that the industry's fingerprints are on that.

[00:08:12] Benjamin Franta: process. They're not the only ones, but they're essentially always there helping to delay things and slow things down. And then I started thinking again about how, what do we do about this? Um, how do we address this problem? And I became interested in law. as, as a tool to address these social problems, you know, went to law school and became a lawyer.

[00:08:34] Benjamin Franta: And so I, you know, I'm, I'm obsessed with climate change litigation. I'm really interested in it. You know, since 2017, we've seen a wave of lawsuits across the U S very similar to tobacco litigation in the 1990s. And this new litigation that's climate litigation targets oil and gas companies for allegedly deceiving the public about climate change for many decades and causing increased damages to society as a result.

[00:09:05] Benjamin Franta: And these lawsuits seek to hold those companies accountable and recover those damages. The last thing I'll say is As you can imagine, those damages are enormous. They're at least hundreds of billions of dollars. They could be trillions of dollars in the U. S. in aggregate. And so it's the biggest mass tort in legal terms ever in the history of law of all time.

[00:09:28] Benjamin Franta: And these cases are now moving closer and closer to Trials some of them are already in discovery where documents are being obtained and Depositions are being taken of key witnesses things like that So these lawsuits are very real and and this is happening. And so it's a kind of a fascinating front in the climate fight I guess you could call it a fight because people are fighting about it You know, I saw that we need research to inform these cases We need scientific research.

[00:09:59] Benjamin Franta: We need investigative research and legal research. And so that's why I came here to set up this, this group at Oxford to do that research. 

[00:10:07] Ed: That background is handy. And just for the viewer and the listener later in the show, we're really going to dive into the legal side and kind of parse the strategies and the tactics.

[00:10:18] Ed: Because certainly now it seems there's no shortage of legal actions against oil and gas companies for the historic damages. But, uh, let's get back when you said, uh, you mentioned, you know, you looked into what the oil companies knew about climate change and when. So what did they know and when? And Dave, I'm going to channel my inner David Keith.

[00:10:37] Ed: He'll remind us that the first article in the New York Times about climate change, David, if I got it right, was in the early fifties. And the first presidential briefing. Got the science right was to Lyndon Johnson in the mid sixties. So I would assume that the oil companies of the day were reading the New York Times and had access to briefings and kind of, they knew this, but what was unique about what they knew and when.

[00:10:58] Benjamin Franta: Yeah. You know, the short answer is they knew a lot and they knew it a long time ago. They basically were on top of the problem since the 1950s. Um, you know, the fifties was when scientists could first start measure to measure, you know, CO2, building up in the atmosphere. They could identify that this was probably coming from fossil fuels.

[00:11:18] Benjamin Franta: The oil and gas industry funded some of that research. Uh, we know that through some of these archival documents, you know, they're on top of this issue. In 1959, Edward Teller, the nuclear physicist, warned the oil and gas industry about the climate problem at an oil industry conference. Warned them about sea level rise by the end of the century.

[00:11:39] Benjamin Franta: You know, in 1965, there was this, uh, report from the White House about environmental problems. There was a whole chapter on climate, or part of the chapter about climate. And three days later, the president of the American Petroleum Institute gave a speech where he basically told the rest of the industry, look, this is going to be a problem by the end of the century.

[00:11:59] Benjamin Franta: But really what's most sort of interesting and legally relevant are the documents from the late. 1970s and later, because that's when some of these companies like Exxon in particular had sophisticated internal research programs focused on climate change. And some of these, um, internal memos from these research programs, they predict exactly how much climate change we would have today, exactly how much CO2 we'd have in the atmosphere today, and many of the damaging impacts that we would.

[00:12:35] Benjamin Franta: We are seeing from climate change and so that shows that these companies had actual knowledge of the impacts that their own products would cause and they understood that to avoid those impacts they needed to start replacing fossil fuels with other energy sources. immediately because they understood it would take decades for that replacement to occur.

[00:12:57] Benjamin Franta: So they needed to start doing that right away. What's so important here is that it's not just that the industry sat on those documents and did not warn the public about the danger. It's the fact that the industry went on to deny And to tell people this is not a problem, and we need more research before we know it's a problem or not, or whether it's a problem.

[00:13:21] Benjamin Franta: So, there is this period of denial, basically contradicting their own internal understanding as evidenced by these documents. And that's really the basis. for these lawsuits is, is this deception angle. And they're really, really driven by these documents, which were only first discovered around 2015. 

[00:13:42] Ed: It does beg the question, the response to the oil and gas companies, was it at all unique when we look at other industries?

[00:13:51] Ed: So look at Purdue or big pharma, and it understood the addictive potential of OxyContin. Look at the tobacco industry. That's the common. Analogy that's used. Look at these days, sports betting, for instance, or, or look at meta, which understood with Instagram, the impact it could have on preteen and teen girls.

[00:14:12] Ed: And all of these companies in multiple industries seem to have this habit of then taking that data and. And not sharing it openly and transparently with the public because it would hurt the sales of their product. So I'd love to just parse is, is it unique to the oil and gas industry or their response, or is it just a problem on a grander scale?

[00:14:31] Ed: But David, I know you've got some thoughts here. So why don't you weigh in? 

[00:14:34] David: Maybe I want to pick up with, with. Ben saying they need to start getting off fossil fuels. So even now, I don't think that's a solution I want to see. I mostly think once we regulate oil and gas out, those companies will go away. I don't think they're going to be particularly competitive supplying solar and wind.

[00:14:50] David: I don't think that's some of them kind of want to claim that's their job. I don't think they'll be that successful at it. I don't think it is in a meaningful way, their job, unless I kind of see them as the all time monopolists of all energy. And then, then it would be their job, but that's not what it is.

[00:15:04] David: I'm trying to think of the ways this is and isn't like these other cases. So in the case of tobacco or better for worse, maybe there should have been a lot of public research and maybe the tobacco industry pushed against it, but it seemed like the tobacco industry actually really did have a bunch of private knowledge about tobacco risks.

[00:15:19] David: that they paid for, which weren't public. My understanding is that that's not the case here, that the vast majority of climate science efforts that were going on in the time you're talking about were in the public domain. And yes, there were people, and I actually work with on them, Bruno Minkowski at, at Exxon, who, who knew that and paid attention to Exxon.

[00:15:38] David: And then they, it was very clear, they served Exxon interests and tried to minimize the damages, but it's not like they knew something special. An additional fact about the damages that they were withholding, or at least that may be true, but I'm not aware of that. 

[00:15:50] Benjamin Franta: I'm happy to share some thoughts about that, but are there other people who want to share theirs?

[00:15:55] Ed: Well, let's get Sarah in and then Ben, let's go back to you. We'll kick around this, this question of analogous versus disanalogous. But yeah, Sarah, your thoughts? 

[00:16:05] Sara: Yeah, I mean, I think that similarity is certainly there. And, you know, I've found a lot of the work that Amy Westervelt has done tracing back even further, the pre, we're talking about 1950s, but going back to kind of the start of the, start of PR and this idea that, you know, she, she says that, um, that it's not necessarily that oil and gas is using Big Tobacco's playbook, but really that, you know, they're using the same playbook that came from the same place.

[00:16:27] Sara: So I think that sort of is in line with, with this idea, Ed, of you're saying this is not unique, but I guess then I would go to, you know, there were successful lawsuits against Big Tobacco and there more recently have been successful lawsuits against some of the pharma companies and, and what they were doing related to Oxy.

[00:16:41] Sara: So I think that to me, that, that more is a almost. Proof of the point of, yeah, we do sort of draw a line in the sand somewhere and say that, you know, companies can't, while they, it's reasonable that they would be trying to promote their products, there is a line that is too far when it goes into harm. But over to you, Ben, on the kind of legal aspect of that.

[00:16:59] Ed: Yeah. And I just want to say one point, Purdue, the maker of oxy was virtually sued into extinction and now people are trying to go after the family. As part of this. So it is an interesting case and maybe we can talk about later. Could you actually foreseeably sue an oil and gas company into extinction?

[00:17:15] Benjamin Franta: It's very interesting because it's very rare that two historical episodes are ever exactly the same, right? You know, there are always differences and it's kind of interesting to think about what they are. For me, I think one of the key differences between tobacco and fossil fuels Is that tobacco is always about control.

[00:17:33] Benjamin Franta: You know, it was never really about abolition from public policy perspective, or, you know, outlawing tobacco, even though it's extremely deadly with fossil fuels, the end state is not control. The end state is replacement as an energy source. Ultimately, that, you know, we sort of just know that that has to occur in a way that fossil fuel industry is in a worse position than the tobacco industry.

[00:17:59] Benjamin Franta: Because the end game is worse for the fossil fuel industry than it is for the tobacco industry, which is still a very profitable industry. So in some ways, the fossil fuel industry kind of realized that very early on by the early 80s or so to mid 80s, depending on the company. These companies understood that climate change was the existential problem for the industry's continued existence into the future.

[00:18:24] Benjamin Franta: And that there was sort of a, um, a bit of a zero sum situation between the industry's welfare and problem of climate change getting worse and worse and worse, of course, and that was understood to just as a basic fact. And so the industry chose with that knowledge, and here's where I think the the moral argument is very strong, that the industry understood that It was in a unique position kind of historically that, you know, in world history, there are very few industries whose products have the capacity to destabilize human civilization across the entire planet, make, you know, callous species go extinct, you know, destabilize various geophysical systems on a historical scale, all within the space of a couple of generations of decisions.

[00:19:15] Benjamin Franta: You know, I can't think of another industry, maybe with the exception of the cold war, you know, military industrial complex and nuclear weapons where, where that was possible. But for the fossil fuel industry, that's the power they had and the consequences of their products. And they understood that they understood that delay would have these.

[00:19:36] Benjamin Franta: enormous irreversible consequences, and they pushed that delay anyway, you know. So I think that's the profound wrong thing that the industry did. And did they have special knowledge? Well, the special knowledge they had was that they knew that they knew. And they didn't share the fact that they knew, you know, they portrayed themselves as uncertain and they convinced a lot of other people that the situation was uncertain as well, but that wasn't accurate.

[00:20:07] Benjamin Franta: And so, you know, to me, that's, that's one of the basic layers of the deception was they did not disclose that they had internal research programs. They did not disclose that they knew with. a high degree of certainty that these consequences would occur. And it took, uh, you know, 30 years of waiting for investigative journalists to find those documents and alert the rest of us, you know, just how deep that knowledge went on the side of the fossil fuel companies for something to be done about this.

[00:20:39] Benjamin Franta: And really those companies should have disclosed that. They had a duty to warn commensurate with the risk and since the risk is so great, they should have been shouting from the mountaintops that, Hey, this is a huge problem. We need to mobilize to prevent this problem. You know, that was their arguably their legal duty in addition to their.

[00:20:58] Benjamin Franta: social duty, but they didn't do that. They did the opposite. 

[00:21:01] Ed: When I listened to that, I, I think of these analogies. I think of the book, Patrick Radden Keefe wrote about OxyContin Purdue called empire pain and Purdue knew the damages. They knew the addictive potential, the damages it could cause. And they of course suppress that and actually told the opposite story.

[00:21:19] Ed: And it will be very interesting to see with the tech companies. Now there's more data coming to light. of their understanding. Now, by the way, reading Jonathan Haidt's The Anxious Generation, which is a fascinating read of potentially what they knew that they're unleashing on the world. But Ben, I do want to go back to you when you say they knew, because we have in our audience a lot of people who work for oil and gas companies.

[00:21:43] Ed: Who is the they? In this case, was it the CEOs? Was it the shareholders? Was it the VP of sustainability? Like from what you've looked at, who, how closely held was that knowledge and that understanding? 

[00:21:56] Benjamin Franta: Well, we know it went all the way to the boards of these companies. And, you know, from some of these documents, it'll say, you know, presented to the board of Exxon on this date, things like that.

[00:22:06] Benjamin Franta: So the scientists studying the problem do, you know, legally corporate. personhood, you know, sort of flattens the geography of knowledge, you know, within an organization. Some people know things, other people don't know things. Knowledge gets forgotten as well. But, you know, these companies have a duty, legal duty, to understand the risks from their products to the level of an expert.

[00:22:30] Benjamin Franta: And we know that they did in many cases understand that. And they didn't do with that knowledge what they should, should have done. So we know it went all the way to the board. We also know that the strategy of delay also went all the way to the board. And you know, that strategy of delay was developed largely by Exxon, people from the American Petroleum Institute and other oil majors collectively in the late 1980s.

[00:22:56] Benjamin Franta: in order to slow down fossil fuel controls. You know, they were getting worried about things like, you know, the UN, UNFCCC ultimately taking action on this IPCC being created in late 80s and so on. The oil companies were worried about that. And there's a great internal strategy memo from 1989, uh, given to the board of Exxon that talks about, you know, what are we going to do to prevent fossil fuel controls?

[00:23:22] Benjamin Franta: the way that ozone depleting chemical controls had just been implemented at that time. and the whole point of the strategy was to prevent the same sort of environmental success from happening with fossil fuels. 

[00:23:36] Ed: I want to end this conversation we're going to sort of parse the strategy including the legal side and what's working what's not working and then talk a little bit about not just some of the lawsuits that are out there but in Canada we have a private members bill that's seeking to Uh, essentially gag the fossil fuel industry from advertising.

[00:23:55] Ed: But before we do with academics with three academics here, I'm going to spend a bit of time on the soft influence tactic of funding of universities. So Sarah, you're at the university of Calgary in the school of public policy. You have a colleague who's I think mostly semi retired, uh, Jack Mintz, who has long been on the board of Imperial oil and the oil and gas industry has strong ties to the university of Calgary.

[00:24:17] Ed: David, you were a senior member of. The ICE, the Institute for Sustainable Energy Environment and Economy, I think it was, in the 2000s. And there was actually, you were a bit player in a scandal that involved the oil and gas industry and trying to influence a faculty member there. So maybe we'll start, David, can you share that story?

[00:24:37] Ed: Because I think it's germane to our conversation today. 

[00:24:39] David: Sure. So there were a couple, but the one that was most visible where there really was a kind of me versus Elizabeth Cannon, the head of UCalgary and a secret recording tapes at a high level confrontation was that a guy called Joe Arvai, who was a faculty in the business school, did a bunch of work on environmental policy.

[00:25:00] David: Nice work. He's still very active, but not in Canada anymore. He was appointed an EPA science advisory board, which is a really senior and important post for somebody who does environmental policy. And the then head of the business school, as I recall, at the behest of Canon or the oil company, that's where I'm not remembering clearly enough, ordered him, uh, to step off the SAB or to refuse the invitation.

[00:25:22] David: And that was a really obscene and shortsighted conflict of interest. Uh, Joe had a tape to prove that that had happened. And there was some big confrontation about that. There were a few others. I mean, during my time at UCalgary, there was lots, including at one point, there was a full page ad in a local paper by the so called friends of science condemning me personally.

[00:25:41] David: And, um, many other. things, but send me back a little more analytically. And then I'd like to maybe hear Sarah's take. A really interesting thing at the end of my time at Harvard is I served on the Institutional Conflict of Interest Committee that was meant to, across the whole university, set broad policies for institutional conflict of interest.

[00:25:57] David: It was actually really, really thought provoking. And where roughly that committee landed, where I landed, but I'd like to hear Ben's kind of counter argument, is that the key thing is when you have significant money from an interested party going into a thing, which is really So, to give you some examples, if there was a purely Exxon or BP funded effort on climate at Harvard in the policy school, that would be a problem.

[00:26:25] David: And there was, Ben and I both know that, if there was a pure Saudi government funded thing on the empowerment of women in Islamic countries, that would be a problem, but at least for me personally, I don't believe that. don't want to see and don't think there's a reason to ban all funding by, say, Saudi Arabia or Exxon at Harvard.

[00:26:42] David: I'm completely happy if Harvard, if Exxon wants to pay some professor in the, in the engineering school to do work on oil cleanup or, or, you know, fuel cells or whatever, that's technical work as long as it, as long as there's clarity about what's happened. I got no problem with that. Um, so to me, there's a real difference between policy focused work and more pure technical work.

[00:27:03] David: Obviously there's a bit of continuum and it also depends what the mix is. I could be okay with Exxon putting money into a policy effort at the Kennedy school, as long as it had very strong environmental layers as well. As long as, uh, the Exxon component was small and well regulated, I could be okay with that.

[00:27:20] David: You know, and we wrote a bunch of detailed policies about this, and it was quite a head scratcher to think about how to write them. 

[00:27:25] Ed: And Sarah, do you want to speak to the UFC experience? I mean, just point blank, have you encountered instances where you think the oil and gas sector influences UFC research into public policy?

[00:27:36] Ed: Well, you know, put technical work aside, as David talked about, and is it a problem or how is UFC counteracting it? Or how do you personally counteract it? 

[00:27:46] Sara: Yeah, maybe I'll speak to my, my personal experience. And, you know, I, I don't have kind of the same sort of direct personal experience like David has had previous at the university.

[00:27:56] Sara: I think a couple of things. And I mean, this is something that I talk with graduate students in science about, you know, as someone who's sort of a scholar. straddles this policy space, the, the risk of kind of soft influence and being thoughtful about where, where you're taking money from and how even if it doesn't come with strings attached, it can of course influence your thinking, I guess.

[00:28:13] Sara: And this is maybe, you know, in the, in the realm of sort of, uh, you know, wishful thinking solutions to all of this while the direct policy research is obviously challenging in some ways. I actually think that you can't really draw a line completely between kind of science versus policy. And, and I think I say this with.

[00:28:30] Sara: you know, three ex physicists who have kind of moved into the policy space on this call, who probably have experiences in the same space, is sort of, often as scientists, we feel like, oh, well, we're asking these very objective questions, right? And it's not influenced by anything other than science directly.

[00:28:46] Sara: And then you sort of start to dig under the hood and see that in almost any science. Even that I've come across, there are ways in which our sort of experiences or, you know, there's no sort of objective truth or objective scientific questions that we can completely ask. And so I think that is a, there's a bit of a slippery slope in there.

[00:29:05] Sara: And to some extent, I actually go back to some of the conversations we had a few seasons ago, you know, where we talked about things like industrial policy. And to me, it's really more of a like question of how we want to organize society, right? And like, who should be the funders of research? If we have money that exists in society, should that rest with companies who get to decide which research they fund?

[00:29:26] Sara: Or should fundamentally, you know, more of that, those funds be directed ultimately, obviously, via taxes to governments who get to decide where research funding goes. And I guess I land on the side of more of a faith in being able to set up a democratically controlled government that at least, you know, is maybe not always going to make the right decisions, but is going to be maybe more directly accountable to the public than companies are.

[00:29:53] Sara: Now, as I say, this is a little bit of a like, if Sarah could write the rules of the world, and I understand that that's not the way that the world works. And so I think within the constructs that we have, you know, there's a lot of good ways to set up rules and sort of. limitations that, you know, in particular, I think, like David said, that, that try to keep the researchers from being funded directly by industry that is sort of in the space that they're working.

[00:30:15] Sara: But of course, that is also hard because I mean, that's, you know, where those, where those pieces naturally are. 

[00:30:21] Ed: I should disclose my own relationship with the oil and gas industry when I ran the Pembin Institute. First, I ran Pembina's consulting group, and then I ran the as a whole. And, and first off, I thought some of the research coming out of the oil and gas industry that I looked at was, was quite good.

[00:30:37] Ed: For instance, I was always a fan of Jeremy Bentham and the work that he did with, uh, the Shell's, uh, Shell Scenarios team. Uh, Statoil, now Equinor, did good work. And oil and gas companies paid Pembina almost at times like an in house think tank to develop perspectives on things, whether it be, Should Canada have a low carbon fuel standard after California came out with it, which Suncor asked Pemona to produce in 2009?

[00:31:05] Ed: Or what do you think about carbon capture and storage and some of the MMV issues which y'all commissioned in the early 2010s? The question is, did it have an influence? We took that research and our deal was, whatever you pay us to do, we're going to take that information and use it any way we see fit, including if that's an advocacy work against your very company, and companies would sign off on that.

[00:31:28] Ed: Would it influence us in other ways? I would say, yes, insofar as that I'd be more likely to take a phone call from, say, one Suncor's CEO, if he or she was unhappy with something that Pemina had said in the public domain as opposed to if we had not had that relationship. So there's some soft influence there in that I would at least take those calls and listen because we had gone back and forth on, say, a piece of research that I wouldn't have done for just some company CEO rolling off the street.

[00:32:01] Ed: But what, what I'd love turning back to Ben, I think of the Drilled podcast, I think the work that you've done, I think of, you know, what's been in national newspapers here in Canada, it's been pretty well publicized that the oil and gas industry had this information, knew, suppressed it, and then created policies and behavior that promoted their products and has contributed greatly to climate change.

[00:32:24] Ed: The fact that that's out, what has it done for the oil and gas companies? Has it diminished their reputations? The trust levels and polls of industry executives is sort of rock bottom. And I think for oil and gas executives, it's even lower as it promoted regulators to then develop regulation as it just generally eroded trust in these companies.

[00:32:44] Ed: Like now that this has been out of the public domain for over a decade, what, what have the impacts been? 

[00:32:50] Benjamin Franta: This sort of information, the, they knew they lied. People died. You know, that's the death knell for the reputation of the industry that they'll never recover from because, you know, the consequences of that conspiracy of silence and deception will reverberate for generations, you know, we're going to see the damages materialized as we're seeing them today, but they're going to keep getting worse and worse and worse and people will know who to blame.

[00:33:20] Benjamin Franta: It's going to be a huge problem reputationally for the industry, basically forever, you know, for the rest of its existence. Now, how does that translate into dollars and cents? We'll see. I mean, obviously, you know, legal liability is one avenue, but on this question of the academic influence, you know, I think this is, this is really key.

[00:33:41] Benjamin Franta: It's a bit of a doorway into the industry strategy. You know, going back to the seventies, when a lot of regulations are being set up. regulate the workplace and things like that, environmental regulations and so on. Already then industries of various kinds understood that one of the main strategies they could use to influence and control regulation was to co opt academic experts.

[00:34:03] Benjamin Franta: And there's even a handbook written by a couple of Stanford public policy professors in the late seventies called the regulation game. And one of its, you know, top 10 recommendations is co opt the experts, give academics. Research grants. They give an example. They say it's no coincidence that you've got economists funded by AT& T saying, Oh, it's natural for there to be monopolies actually, and that's fine in the market.

[00:34:27] Benjamin Franta: You know, you know, what industries do is they survey The field of experts they find the ones who have views aligned with theirs and they fund them in order to amplify those views and it shifts center of gravity. We know from internal in tobacco industry documents, this is what they, they did. For example, you know, when we saw how the opioid industry used the science of pain to say, Oh, pain is, you know, the fifth vital sign.

[00:34:53] Benjamin Franta: And so we need people taking more painkillers. Everything the oil industry has done in the last 40 years has basically been to undermine and distract away from one fact, and I think it's probably the most important fact about global warming, and that's to stop global warming and solve it as a problem.

[00:35:14] Benjamin Franta: It's necessary to replace fossil fuels, and it's mostly sufficient to replace fossil fuels. And that's sort of the most important fact about global warming. And that was understood by the early to mid eighties by the fossil fuel companies and by various scientists and basically everything done since then has been to distract away from the reality of that fact, the fact that something needs to be done.

[00:35:36] Benjamin Franta: And so in the late eighties, The industry put together a plan that had three prongs to undermine that fact. The first part was litigate the science. Say we, you know, it's not certain whether climate change is happening or not. We need more research and so on. We don't know what the impacts will be. We don't know enough to take action.

[00:35:54] Benjamin Franta: You know, that lasted for about 10 years in this, like, the nineties, the heyday of hardcore climate denial. The second part was to say it's too expensive to control fossil fuels. This is sort of the economic manipulation that we see, which also involves funding of academics. And then the third prong, which I think is most germane to this issue is propose alternative solutions that do not threaten the market share of the fossil fuel industry.

[00:36:20] Benjamin Franta: And so the first three of the industry identified in the late eighties were promote efficiency as an adequate solution, promote carbon offsets. and pro natural gas as, as a climate solution. And those were the first three sort of distraction solutions, kind of fake solutions that were proposed by the industry.

[00:36:38] Benjamin Franta: Now in the late 90s, just about the time when the tobacco industry signed the master settlement agreement, when, you know, the biggest legal settlement ever, 1998, 1997, 1998, that's when the oil industry moved away from its overt climate denial. Very suddenly and in unison and started saying, we believe in climate change.

[00:36:58] Benjamin Franta: It's real. And we're a part of the solution and we have the solutions and here's what they are. And then they continue to promote more of these solutions that don't actually threaten the fossil fuel market share that much. And again, They, they serve to distract away from the necessity of replacing fossil fuels.

[00:37:17] Benjamin Franta: So these are things like carbon capture. These are things like biofuels, which of course still contain fossil fuel. Almost all biofuels contain fossil fuel hydrogen. Almost all the hydrogen produced in the United States is made from fossil gas. And it's a really good excuse to build more gas distribution pipelines and their distribution networks.

[00:37:33] Benjamin Franta: And we've seen the industry do that too in personal responsibility. You know, you need to carpool more. You need to not take 20 minute showers. They need to be 10 minutes. All of these false solutions, this was an essential part of the industry strategy. Now, one of the ways the industry legitimized those solutions is by funding academic centers to focus on those things.

[00:37:54] Benjamin Franta: And we also see that happening at exactly the same time historically. late 90s, early 2000s, when all these companies are undergoing rebranding campaigns, that's when they establish academic centers to focus on natural gas, carbon capture, biofuels, hydrogen, and their preferred policy solutions like cap and trade, which have been, you know, empirically ineffective.

[00:38:16] Benjamin Franta: Basically, this is how it fits, you know, this is how these solutions gain legitimacy, you know, and then there's just the obvious fact that if you're an academic funded by an oil company, it's extremely difficult to I'm 

[00:38:32] David: not going to jump in. I feel like the things you said about the strategies for influencing academia and public policy, I completely agree with.

[00:38:39] David: And I think to me, this is really kind of a separate debate. I'd like to have more, more on another thing with, with Sarah, because I do think there's ways in which. Yeah. No place does very well, but I think Canada is particularly badly on having really independent academic research on policy to me. That's nothing on that one.

[00:38:55] David: There's nothing special about fossil fuels at all. It's really about how academia regulates this kind of research. Sticking to the question of fossil fuels. I also agree with you about this lobbying salesmanship strategy that the companies took. agree. I think what, where maybe we don't agree or where to me it's not clear is to what extent these are legal matters or it's reasonable to think they should be settled to the courts.

[00:39:15] David: One of the core differences between the tobacco or oxy thing or tobacco or oxycodone things, there seem to be two big differences. One is the fact that the companies really knew a bunch of specific facts about the risks of their product, which were not Broadly known scientific facts. And I believe, I think you agree, that's not true in the case of the fossil fuels.

[00:39:35] David: And the second one is that for certainly tobacco, uh, we can argue about what's the right tobacco policy. I'm not saying a total balance right policy, but the point is nobody needs tobacco. If you went in a sudden policy where you eliminate tobacco tomorrow, people who are really strong smokers will arguably have their rights trampled, but nobody would be armed and many people are better off and objective senses, obviously with tobacco.

[00:39:56] David: I think the case is fundamentally different with fossil fuels. You're absolutely right that the stock and flow nature of the pollutant means in the end we have to stop putting CO2 in the atmosphere. No question at all. That's a fact. Although that's not a fact that is necessarily sufficient. We might want to remove CO2 from the atmosphere.

[00:40:10] David: So you imply that it was necessary to cut CO2 emissions to zero. I agree. You imply that there's evidence that's sufficient. I don't see any evidence of that because as you know, that just means that temperatures stop rising. And if you believe temperatures. climate change is a problem, then presumably you should want to produce those temperatures somehow.

[00:40:27] David: But that's a sideshow. I think the big point is that there isn't any objective right answer about how quickly to cut fossil fuels. And the answer is surely not instantly. If you cut fossil fuels instantly, there'd be real chaos and big harm. So to me, there's a legitimate public policy debate about how fast to cut them.

[00:40:43] David: where there isn't a simple right answer. No question. All of us in this podcast would vote to cut fossil fuels a lot faster than a typical oil and gas people. Self interest matters, but there isn't an objective right answer where you can sue somebody for saying they delayed compared to an objective right answer.

[00:40:58] David: So that's where I'm really kind of puzzled about, about how this would make sense as a legal strategy. I get it as a PR strategy, helping to make those guys look worse. helps overall in lubricating the actual regulation that does something. But again, I guess one last thing is these are companies that make products that are not fundamentally consumer facing.

[00:41:17] David: So if it's post versus Kellogg, or if it's competition being car brands, consumer facing really matters. The oil and gas complicated supply chain doesn't, it's not, you know, it's not evidence that this advertising actually changes very much in a way that really is clear for other things. Like the advertising, as you say, the main thing is about simply Preventing the political action that would have moved us faster off fossil fuels.

[00:41:38] David: In that way, they clearly have acted and been somewhat successful. Totally agreed. It's not like a consumer product, Debra. And I said, yeah, I guess I hear your thoughts on that. 

[00:41:46] Ed: And maybe could I just, just frame it for Ben, a couple of questions on the legal strategy, because it seems to me there are sort of two approaches.

[00:41:54] Ed: One is let's say a city as soon as an oil and gas company. Because it has to build a seawall because of climate change. And it goes after that company for damages. That's one. Does it actually succeed? And if yes, are they getting material damages? Does that actually change, alter the company's behavior? Or is it sort of the knock on effects, the reputational impact?

[00:42:14] Ed: Shareholders don't want to invest. People don't want that company drilling in their local area, et cetera, et cetera. And then there's this other one. Maybe it's unique, but the Dutch case going after Shell. And I can't remember who the litigant was. Was it Greenpeace? in the Dutch case, but holding Shell accountable to not an intensity based cut, but an absolute emissions reduction cut, and not just scope one and two, but scope three.

[00:42:40] Ed: And that case was successful, but I don't know what happens if or when Shell fails to meet that aggressive absolute emissions reductions cut. Is there a hefty cost award associated with it? Or again, what is it? The main impact reputational. So, yeah, back to you, Ben. 

[00:42:57] Benjamin Franta: I mean, these are really important questions, and they're basically unresolved questions legally.

[00:43:03] Benjamin Franta: I mean, they are going to be argued fiercely in these cases. When it comes to the question, you know, did they have special knowledge that other people didn't know about? They had knowledge that a lot of people didn't know about. You know, certainly we know a lot of people did not believe that climate change was a serious problem.

[00:43:21] Benjamin Franta: And we know that these companies were telling people that. Sort of the simple fact legally is that you, you're, you're not allowed to lie to people about your products. You know? And that's basically what these companies were doing. They were saying, we don't know that much about this problem. We don't know if it's gonna be bad.

[00:43:39] Benjamin Franta: You know, they were. paying economists to say, ah, climate change, it's not going to cost that much money anyway, it's fine, you know, and that's not what the internal documents from these companies were saying, which talked about really severe impacts. So at the end of the day, it's just, it's not lawful to lie about climate change.

[00:43:58] Benjamin Franta: Uh, to, to consumers. And so that's really where these companies are, are getting in trouble. And, you know, one way to think about is this, what could have happened, what should have happened and both in these companies, internal documents and in the scientific literature, In the late seventies, early eighties, you know, there were analyses done of how much could we limit a CO2 buildup if immediate action were taken in a realistic way.

[00:44:23] Benjamin Franta: And you know, some of those analyses came out with the answer 400 parts per million. You know, we can limit CO2 buildup to 400 parts per million if action were taken then. Assuming it takes, say, 50 years for non fossil fuel energy sources to penetrate half the energy market. It's, you know, kind of reasonable assumptions like that.

[00:44:45] Benjamin Franta: We're way past that, obviously. So, you know, we know that things are much worse than they could have been otherwise. And we know that a substantial reason that it's worse is because these companies convinced a large fraction of the population that this is not a problem, that we have to wait, things like that.

[00:45:04] Benjamin Franta: Now that's where people might argue, you know, back and forth about how do you isolate that. 

[00:45:08] David: Yeah. Can I, can I jump in? Like, we know the companies tried to do that, but you haven't offered any evidence about the extent to which they were successful. So I agree with everything you said until we know these companies had a big influence.

[00:45:21] David: Not clear. 

[00:45:22] Benjamin Franta: Where this really sits is In the PR and advertising companies because this is exactly what they measure and it's not common to find those internal analyses that said that say things like because of our ad campaign, you know, there's a 20 point increase in the number of people who don't think that climate change is an urgent issue.

[00:45:42] Benjamin Franta: But those analyses presumably were done. And we have some examples for other things. Like in the greenwashing age of the last 25 years, we have some examples of PR documents that say, because of our ad campaign, there's a 10 point increase in the amount of people who think that our company takes sustainability seriously as a good faith partner and addressing climate change.

[00:46:05] Benjamin Franta: It's all to build trust and reassure the public. So that stuff exists. Now, legal discovery is one of the only ways you can get at those documents, and so that might be one of the outcomes here. Now, legally, and remember in law, unlike in science, the law values resolution, timely resolution of a problem, and so some presumptions are permitted.

[00:46:27] Benjamin Franta: You know, when a company, uh, says in its internal documents, our goal is to, uh, Convince people this is not a problem. And then they take actions consistent with that and they spend, you know, hundreds of millions of dollars to do that. Then there's a presumption that's permitted that that's what happened.

[00:46:42] Benjamin Franta: And it's on the company to prove that their efforts were actually unsuccessful despite all of their money spent. That's some of the legal kind of jostling that goes on. Yeah. 

[00:46:54] Ed: Ben, I want to bring in. Uh, an audience member to ask a question, it's right up your alley, and it's about legal sequencing across jurisdictions.

[00:47:02] Ed: So, uh, Joey O'Brien, over to you to ask your question. 

[00:47:05] Joey O'Brien: I'm a great fan of your guys's, uh, presentations. Thank you, Ben. You know, if you follow some of the other tobacco as an example, is this going to have to be a successful case, let's say in the Southern District of New York, but then spreads through the U.

[00:47:18] Joey O'Brien: S. and then finally throughout the world and maybe Canada, because we always seem to be one of the last in terms of being able to take legal action that matters. Is that the pathway that you imagine? 

[00:47:29] Benjamin Franta: Well, I think that might be what happens with the damages litigation, you know, because the U. S. arguably has the most powerful tort system in the world.

[00:47:38] Benjamin Franta: The U. S. is not strong when it comes to human rights law, you know, on the other hand. So, you know, it has its strengths and weaknesses where the U. S. is strong is the ability to sue big companies and whole industries for damages. Extensive legal discovery and the existence of jury trials and punitive damages and you know, remember punitive damages can be up to 10 times sometimes actual compensatory damages.

[00:48:03] Benjamin Franta: So that's really what freaks defendants out these, you know, companies out is, is that scale of potential punitive damages in front of a jury of regular people who will see these documents and this evidence. 

[00:48:15] Ed: And Ben, sorry, just to jump on, the other difference in the U. S. is the strength of private prosecutions.

[00:48:20] Ed: So, RFK Jr., before he became a nut bar, set up the Waterkeeper Alliance, and it was all based on private prosecutions getting big awards, and piling that money back into further legal actions. I've actually tried a private prosecution in Canada. Invariably, the Crown comes in, takes over the case, and stays the charges.

[00:48:37] Ed: So, it's just not a successful tactic here in Canada. 

[00:48:40] Benjamin Franta: That's really interesting. Thanks, Ed. And there are cases going on all around the world of different kinds. You know, Ed, you mentioned the case in the Netherlands against Shell. You know, that sort of case, I have a hard time imagining happening in the U.

[00:48:52] Benjamin Franta: S. to, you know, see a, seek an injunction against a company that basically orders it to change its business plan because of some human rights law. That's what happened in Europe. And that, that case is It's being replicated in various forms throughout Europe, and it's going to be strengthened by these various international human rights courts opinions that are now coming out this year about climate change.

[00:49:15] Benjamin Franta: So there are these different legal strategies happening around the world pursuing the strengths of their respective legal systems. 

[00:49:21] Sara: Maybe asking, uh, Ben, for you to kind of look into the future almost in the U. S., you know, how could this play out, say, over the next, uh, ten years or something like that, in, in terms of these cases?

[00:49:32] Sara: Or, or maybe if you don't have a crystal ball, at least, what are some of the different ways that this could go? 

[00:49:37] Benjamin Franta: I don't want to speculate too much, but we can look at what's happened with other mass tort situations. You could have a mass settlement. You could have a mass settlement with some entities, you know, some of the opioid litigation, you had, you know, big settlements and then you had leftover suits that continued.

[00:49:52] Benjamin Franta: You could have something like that. You could have a congressionally brokered deal. The tobacco industry in the 90s tried to get. J. B. We do know that Congress passed a deal in exchange for immunity that failed and then there was the master settlement agreement with the states after that. That is possible.

[00:50:06] Benjamin Franta: That's something that could happen, you know, we sort of don't know. And of course, you know, the Supreme Court could also weigh in on this and change the shape of these cases. There are lots of different potential outcomes. A really interesting development that's parallel is that some of the states are now proposing in state legislatures, these climate superfund bills, which basically calculate or estimate damages from climate change adaptation costs in state, and then sort of get that money directly from the fossil fuel companies.

[00:50:36] Benjamin Franta: So it's kind of accomplishing what damages litigation would seek. But as a matter of legislation, and I'm sure that will be challenged legally, but that's very interesting. So it's, uh, changing what people think may be possible from a climate damages, compensation and reparations perspective. 

[00:50:53] Sara: And do you think then would funds actually flow?

[00:50:55] Sara: I mean, you talked about the legal system liking, you know, resolution. So is this something where funds would flow or would there be legal battles that just continue for, you know, a really long time stretching this out? 

[00:51:06] Benjamin Franta: That's a really good question. You know, I, I don't know for sure. And some people say, you know, litigation takes a long time and it does compare to some things and it doesn't compare to other things.

[00:51:15] Benjamin Franta: You know, I mean, the big mass torts take 10 years basically, you know, in the U S and you know, these cases started six, seven years ago. So we're already pretty far in, we're kind of on the cusp of trial potentially for some of the cases, you know, but 10 years. to fundamentally change the whole climate calculus.

[00:51:35] Benjamin Franta: I wish it were faster, but that also is not a huge amount of time. I mean, if this would have started in 2005 or 2010 with a successful strategy and the evidence that was needed, we'd be in a different place now. 

[00:51:45] Ed: Well, I'm looking at the clock. We're actually at the top of the hour. Unfortunately, So all those audience members who asked questions, sorry, we weren't able to get to all of them or many of them.

[00:51:53] Ed: As you saw with Sarah, we tried to incorporate them into our own questions of Ben, but Ben, I just want to say thank you. This has been a fascinating topic and it's a very live discussion and it almost begs having you back on the show in a year or two to see how some of these cases have played out. 

[00:52:10] Benjamin Franta: Yeah, thank you, Ed and David and Sarah and Ahmed.

[00:52:14] Benjamin Franta: It's to be continued. I think climate litigation will probably continue for the rest of our lives, I would imagine. 

[00:52:23] Ed: Thanks for listening to Energy vs. Climate. The show was created by David Keith, Sarah Hastings Simon, and me, Ed Whittingham, and produced by Emmett Tandon, with help from Crystal Hickey.

[00:52:32] Ed: Serena Gibson and Talia Grunau. Our title and show music is The Wind Up by Brian Lipps. This season of Energy vs. Climate is produced with support from the University of Calgary's Office of the Vice President of Research and the University's Global Research Initiative. Further support comes from the Trache Family Foundation, the North Family Foundation, and you, our generous listeners.

[00:52:53] Ed: Sign up for updates and exclusive webinar access at energyvsclimate. com and review and rate us on your favorite podcast platform. This helps new listeners to find the show. We'll be back on June 20th with Jonathan Wilkinson, Canada's Minister of Energy and Natural Resources, for what might turn out to be an Ask the Minister Anything show.

[00:53:10] Ed: We'll see you then.