How strong is the evidence that big fossil fuel companies knowingly concealed the hazards that they knew would result from the normal use of their fossil fuel products through misrepresentation about those products and deliberately discrediting scientific information related to climate change? Read the impressive amicus brief in the San Mateo litigation. It lays out evidence that the fossil fuel companies had actual knowledge of the risks of their products and had taken “proactive steps to conceal their knowledge and discredit climate science” while at the same time taking steps to protect their own assets from the impacts of climate change.
The brief starts this way:
“At least fifty years ago, Defendants-Appellants (hereinafter, “Defendants”) had information from their own internal research, as well as from the international scientific community, that the unabated extraction, production, promotion, and sale of their fossil fuel products would result in material dangers to the public. Defendants failed to disclose this information or take steps to protect the public. They also acted affirmatively to conceal their knowledge and discredit climate science, running misleading nationwide marketing campaigns and funding junk science to manufacture uncertainty, in direct contradiction to their own research and the actions they themselves took to protect their assets from climate change impacts such as sea level rise.”
In February 2019, Canada’s Office of the Superintendent of Financial Institutions (OSFI) warned insurers that climate liability — the risk of being sued for climate damage — must also be “top of mind.” The OSFI is an independent regulator, supervising 400 financial institutions and 1,200 pension plans.
Within weeks, the OSFI had more reasons for its warning, when a powerful court decision against Canada’s tobacco companies provided another precedent for holding climate polluters liable.
In March 2019, the Québec Court of Appeal denounced just such conduct when it ordered tobacco companies to pay $15 billion in compensation and punitive damages (decision available in French only). This single decision made Canada’s tobacco companies — including Imperial Tobacco and Rothmans, Benson & Hedges — insolvent. Within two weeks, they were in bankruptcy protection.
The companies created doubt in the public mind about the health risks of smoking through “denial, minimization, use of partial science to assert the existence of a scientific controversy … insistence on the weaknesses of the statistical links … transformation of facts into opinions ….”
The court illustrated this conspiracy by quoting the companies’ attacks on the credibility of science and scientists. For example, the companies’ campaigns to discourage health regulators from acting on the Royal Society of Canada’s 1989 report, “Tobacco, Nicotine, and Addiction”, included a group letter, stating:
“We regard the Royal Society report as a political document, not a credible scientific review, and we look upon any attempt to brand six million Canadians who choose to smoke as “addicts” as insulting and irresponsible.“
Similarly, the Philip Morris Spokesperson’s Guide coached staff to attack the scientific evidence of addiction.
The court utterly rejected the companies’ excuses that they were merely selling a legal product in compliance with regulations, and that everyone knew cigarettes were dangerous. According to the court, the companies were guilty of:
[B]ad faith behaviour, resulting from a deliberate concealment of the effects of smoking on the health of users, and then from systematic denial, minimization and trivialization of these, based in particular on the idea, cleverly but artificially maintained, of a scientific controversy and on the alleged weakness of the relations between cigarette and diseases or dependence, all coated with a misleading advertising strategy … .
Liability of climate polluters?
It’s not hard to see the parallel between the tobacco and fossil fuel industries. Like tobacco, fossil fuels remain legal and highly regulated products, initially considered harmless but now known to create severe damage. Like tobacco, the fossil fuel industries have spent heavily to mislead and to create doubt and delay. But the time for such doubt has run out.