By Amy Westervelt
There are a couple ways so-called “average” Americans can try to hold the powerful to account: We can take to the streets or take to the courts. But for decades, powerful industries and their allies in state houses nationwide have been slowly, surgically narrowing those options.
Now, with an alarming number of states moving to criminalize protest, and a renewed effort to push “tort reform,” a euphemism for eroding the public’s ability to hold companies legally and financially liable for the harms they cause, these two key tools are very much in danger.
The social movements of the 1960s and 1970s brought big wins for civil rights, women’s rights, LGBTQ rights, and environmental and consumer protections. In a lot of ways, efforts to roll back those wins over the last several few decades have been one long counter-reaction to those initial reforms.
In response to the erosion of those social and legal gains, the last five or six years have seen a resurgence of the progressive left, and a return to the direct action approaches of the past, but informed by a new understanding of the ways injustices interconnect, and much better organized by virtue of new digital tools. Previously disparate groups are starting to recognize that whether they’re climate-focused, race-focused, gender- or class-focused, they’re all really fighting for the same thing: justice (which is critical to winning any one of these fights, as Mary Annaïse Heglar has pointed out time and again) .
This Avengers-like coming together of multiple social movements into one coordinated push for justice terrifies the industries and political groups that (unless they change, too) stand to lose the most from the achievement of social, economic, and environmental justice.
They spent decades building out a network of think tanks, front groups, political action committees, media, and politicians to combat the last wave of protests, and succeeded in slowing down or reversing many of the last century’s reforms. This time around, though, it’s not enough to crush one movement at a time. So instead, the powers that be are looking at removing accountability altogether.
First, they came for protest
In the aftermath of 2014’s Ferguson protests as well as the Standing Rock anti-pipeline protests of 2016, municipal and state governments began to pass laws criminalizing protest. Many of them were spurred to enact these laws by the American Legislative Exchange Council, or ALEC, a conservative dark money-funded organization that drafts model legislation and distributes it to state politicians. In 2017, ALEC drafted the “Critical Infrastructure Protection Act,” which suggested large fines and extended jail time not only for protestors, but also for groups that organize protests.
Over the three years since ALEC began circulating this model law, 11 states, including Missouri, home to the original Black Lives Matter protest in Ferguson, have passed laws based on it, according to the International Center for Nonprofit Law, and similar bills are pending in 22 more. These laws aim to crack down on pipeline protests, in general, but given the expanding and incredibly vague definitions of “critical infrastructure” they include, could have a chilling effect on protest in general; a scary thought given that many of the states passing or considering these laws just so happen to be states with recent civil rights protests as well, including Minnesota, the epicenter of the George Floyd protests. So while the “intellectual dark web” set is busy squawking about infringement on the free speech rights of a sitting U.S. Senator, whose op-ed remains published on The New York Times’ website, the sort of speech the First Amendment was actually crafted to protect is being threatened across the country.
Kentucky, South Dakota, and West Virginia have passed their versions of these laws just since March, amid the initial disruptions of d the coronavirus pandemic, right around the time oil and gas operatives were shouting that it “wasn’t the time to talk about climate.” In Louisiana, a major oil, gas and petrochemical state, lawmakers in late May proposed a bill that would mandate a three-year minimum jail sentence for protestors caught trespassing on fossil fuel land, and allow sentences of up to 15 years. [Update 6/15/20: On June 12, Gov. John Bel Edwards vetoed the bill. — Ed.]
Non-oil and gas states are starting to consider these bills, as well, a trend that’s especially concerning in the midst of the past three weeks’nationwide protests against police brutality. In May, HuffPost reported that the Alabama state legislature moved a bill forward that would add new criminal penalties to nonviolent protests against pipelines and other fossil fuel projects. It was a weird move given that Alabama has no major pipeline projects planned.
Then, they came for the courts
Then there are the efforts to shut down the public’s access to the courts. In the past few months, the U.S. Chamber of Commerce, National Association of Manufacturers, and American Tort Reform Association, or ATRA , all of which have deep ties to the fossil fuel industry, released reports highlighting the urgent need to narrow the ways in which victims of corporate abuses or accidents can sue for damages.
“We’ve seen the same sorts of arguments for 40 years, with these faux white papers on tort reform,” says Doug Kysar, Deputy Dean of Yale Law School. “But there has definitely been more juice recently because of the climate suits.”
The “climate suits” are a recent batch of cases filed by municipalities and one state, Rhode Island, against fossil fuel companies, alleging that fossil fuel companies have not only contributed to climate change, but also knew for decades about the climate effects of their fossil fuel products and moved to delay action by both denying those effects and misinforming the public about them. These decades-long denials and delays, the governments argue, have led to intensified impacts of climate change, such as extreme wildfires and flooding, making them harder and more expensive for local and state governments to manage. So, they want the companies most responsible held legally liable for those damages.
Kysar notes that the first wave of climate cases, filed a decade or so ago, brought a similar reaction. “The fossil fuel companies hired Larry Tribe from Harvard Law,” Kysar said. “He’s considered a liberal icon but he took hefty fees to become a spokesperson on these issues.”
This time around, fossil fuel companies have linked up with pharmaceutical companies worried about the precedent set by opioid litigation, as well as tobacco companies, which are worried about the potential for vaping cases to cost them almost as much in damages as the historic tobacco litigation of the 1990s. Together, these industries are warning the nation that a growing array of opioid accountability litigation, along with the latest climate liability suits, are sending us down a slippery slope to “super torts.” Scary!
ATRA made the same arguments for cigarette companies back in the 1990s, getting up to $570,000 from Phillip Morris some years to “ease the liability burden” of Big Tobacco. In 1999, as part of a Phiilip Morris campaign, ATRA attorney Tiger Joyce penned a pun-filled opinion piece that ran in papers across the country, entitled, “Lawsuit Abuse, an April Fool’s Joke.” Today, Joyce is president of ATRA, and In mid-May Bloomberg ran an opinion piece by Joyce along similar lines, this time aimed at climate liability, “INSIGHT: Climate Case Is Ninth Circuit’s Golden Opportunity on Nuisance Suits.”
All three of the recent tort reform reports take a similar approach, essentially chalking liability suits up to greedy trial lawyers trying to get rich. Never mind that some of the lawsuits they cite, like those against lead paint manufacturers, helped to pay for costs consumers would have otherwise borne to address long-term health impacts that manufacturers knowingly imposed on the public.
“Everyone who brings these types of suits knows how difficult they are,” said Jessica Culpepper, who handles food industry liability suits for the nonprofit Public Justice. “I’ve never had people call and say ‘I don’t like this guy so I want to sue him.’ It’s always, ‘I’ve tried every other option,’ and they’re at that point where they think some politicians are in industry’s pocket and others are afraid to take industry on.”
“When there’s this vacuum of protections,” she said, “the only place to fill that is the courts, it’s the last safeguard.”
Culpepper recently brought a suit against Smithfield on behalf of meatpacking workers seeking some minimal protections from the coronavirus, such as slightly slowing the line, being provided with protective gear, and changing workstations to allow for social distancing. Pretty basic asks in the middle of a global pandemic, you’d think. But “Smithfield’s statement against us was, ‘This is a bunch of groups coordinated to get their agenda across’,” said Culpepper. “ Uh yeah, our ‘agenda’ is worker safety. What’s yours?”
The fossil fuel industry has lobbed similar attacks at attorneys and nonprofits that are backing both the climate liability suits and the opioid suits: They just want money. They have an agenda.
“The tort reform guys characterize the climate lawsuits as power grabs by city officials, but they’re not that,” Kysar said. “They’re desperate acts by cities that don’t have the power to print money like the Fed does, that are already in perpetual budgetary crisis and are now facing massive predictable costs. Who will pay the bill?”
So far, only two state legislatures have picked up the tort reform idea. In Kansas, a bill proposed in January would require local governments, including cities, counties, school boards, and other local or regional entities, to get the approval of the state attorney general before hiring law firms on a contingency fee basis (the process generally followed in big liability suits). In Florida, legislators have proposed bills that would limit the amount of contingency fees trial attorneys can collect.
“I’m not really worried about this catching on,” said Marco Simons, an attorney with Earth Rights International who is lead counsel on a series of Colorado climate liability cases. “We've seen no evidence so far that any legislative body is actually taking industry up on its pleas for immunity. What I think it does definitely show is that the fossil fuel industry is increasingly scared of potential liability in these lawsuits.”
Simons said he does think the similarity of the messages coming out of the Chamber of Commerce, NAM, and ATRA indicates a coordinated campaign. “They appear to have made allies of some more traditional tort reform constituencies in the drug industry and the insurance industry that were not previously really working together closely with the fossil fuel industry. And now they're all sort of echoing each other.”
But there’s one notable argument the reports don’t make, he noted: that the lawsuits are frivolous, which is grounds for dismissal in every state and federal court in the country. “And that's because they're not frivolous,” he said. “So you're talking about suits that may win or they may lose, but they're not crazy.”
The fossil fuel industry has tried to secure legal immunity for itself in other ways too, such as trying to write immunity into various carbon pricing proposals, and most recently, backing provisions in COVID-19 stimulus packages that give companies temporary immunity.
There’s an easier solution, says Culpepper. “The best way to get immunity from lawsuits is to do the right thing in the first place!”