Surprise, Big Oil Has the Same Lawyers as Big Tobacco

Oil companies are not only borrowing strategy from cigarette companies to downplay the risks of climate change, they are also using the same lawyers and organizations to defend against climate lawsuits.
September 28, 2020, 2:17pm
Picture of an oil refinery.
The top group opposing climate lawsuits defended big tobacco. Photo by Chung Sung-Jun/Getty Images

Earlier this year, three New Jersey senators urged the state to sue the fossil fuel industry for lying about the climate emergency. A resolution they introduced, which is now winding its way through the legislative process, alleges that fossil fuel companies “downplayed the risks of climate change” while selling products it knew would cause devastating sea-level rise and disasters like Hurricane Sandy.

“Big Oil took a page out of Big Tobacco’s playbook and funded and led a decades-long campaign to lie, deceive, and confuse the public about the science of climate change,” they argued in an op-ed this summer.

Oil companies are doing more than just borrow strategy from cigarette companies, however. With legal efforts like New Jersey’s on the rise across the U.S., Big Oil appears to be outsourcing its defense to organizations that actually wrote the tobacco playbook.

“Selling lawful energy necessary to modern society is not a liability-causing event,” lawyer Phil Goldberg wrote to the New Jersey senate earlier this month, on behalf of the National Association of Manufacturers. “It is neither fair nor productive to scapegoat an industry.”

The National Association of Manufacturers is an industrial trade group that represents more than 14,000 companies, including fossil fuel producers Exxon, Shell, and Arch Coal. The association’s membership also includes Philip Morris. In internal documents, the tobacco giant once described the National Association of Manufacturers as a “loyal” ally, saying that it had “aggressively courted the media on issues consistent with our interests.”

Goldberg himself, who didn’t respond to a request for comment, is a managing partner at the law firm Shook, Hardy & Bacon. “They were well-known for defending the tobacco industry,” Sharon Eubanks, a former U.S. attorney who helped lead a federal fraud trial against cigarette manufacturers in the early 2000s, told VICE News. That trial resulted in a 2006 ruling stating that the companies “sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.” Eubanks has since advised policymakers on the parallels between tobacco and fossil fuels.

The recent New Jersey resolution states that “14 municipalities across the country and the States of Massachusetts and Rhode Island have filed lawsuits against companies that produce, promote, market, and profit from the sale of fossil fuels.” Over the past month alone, those jurisdictions have been joined by Connecticut, Delaware, and the cities of Hoboken, New Jersey and Charleston, South Carolina.

Goldberg has fired off statements, letters, and op-eds opposing many of these legal challenges, sometimes within hours of them being announced. He recently argued that “filing a bunch of these lawsuits is a political strategy by environmental advocates” that will “do nothing” to solve climate change.

But supporters of climate lawsuits see this a deliberate public relations strategy. “It’s reminiscent of the tobacco liability litigation,” Denise Antolini, an environmental law professor at the University of Hawaii, told VICE News. She said that fossil fuel producers are desperate to prevent public opinion from turning against them, the same way it did against cigarette makers once courts ruled that they had deliberately lied about the dangers of smoking.

If and when these current climate lawsuits start being tried, Big Oil will have to defend itself in court against allegations that it could have prevented immense death and suffering by acting on its early knowledge of climate change, but chose to fund campaigns casting doubt on climate science instead. “The opportunity is there to pivot the mindset of the American public…to get people to realize their consumption choices are bound up in deception,” Antolini said.

Goldberg is special counsel and spokesperson for an organization known as the Manufacturers’ Accountability Project, which since its founding in 2017 has become one of the most vocal opponents of efforts to sue oil, gas, and coal producers. “It is very actively defending the fossil fuels companies against this litigation,” said Karen Savage, a reporter for the media outlet Climate Docket who’s covered the organization.

The Manufacturers’ Accountability Project, which didn’t respond to VICE News’s request for comment, was created by the National Association of Manufacturers.

Back in the 1950s, scientists at Philip Morris, then the world’s largest cigarette maker, observed that “evidence is building up that heavy smoking contributes to lung cancer.” But the company denied that link publicly for decades, and by the 1990s was working closely with the National Association of Manufacturers to ward off a growing number of lawsuits, including collaborating on a “massive outreach and mobilization effort” targeting Democratic lawmakers.

Shook, Hardy & Bacon, the firm that Goldberg has worked at since 2003, was similarly involved. Its lawyers aggressively defended the tobacco industry in court—in one infamous exchange causing a plaintiff dying of lung cancer to well up in tears during cross-examination by questioning if he knew the color of his father’s eyes. “Shook, Hardy & Bacon also assisted the Tobacco Institute (a trade and lobby group for the industry) in setting strategy, preparing witnesses on smoking and health issues, briefings, reviewing press releases, advertisements, and other public statements, and orchestrating follow-up activities,” according to the 2006 ruling from U.S. District Judge Gladys Kessler.

She wrote in her opinion that attorneys representing the tobacco companies “played a major role in these efforts to discredit the Surgeon General’s Reports and attack other scientific research linking smoking and disease,” and that this represented “a sad and disquieting chapter in the history of an honorable and often courageous profession.”

Yet a 2008 article in ABA Journal about Shook, Hardy & Bacon noted that “even the firm’s harshest critics admit there’s no evidence any of the firm’s lawyers have ever been charged with professional misconduct.”

Eubanks argues the same tactics used then by Big Tobacco—which included attacking the people suing them rather than responding to the actual substance of a given lawsuit—are now being repeated on behalf of Big Oil. “They want you to say ‘look at what the trial lawyers are doing’ instead of reading what the allegations are,” she said.

An internal tobacco document from the late 1990s for example urged cigarette companies and their allies to question the ethics of “trial lawyers,” argued that cancer litigation could be a “slippery slope” for U.S. businesses, and warned of a “massive increase in government involvement in the private sector.”

The Manufacturers’ Accountability Project, by comparison, currently describes climate litigation as a “concerted, coordinated campaign being waged by plaintiffs’ lawyers, public officials, deep-pocketed foundations, and other activists who have sought to undermine and weaken manufacturers in the United States.”

“It’s gaslighting,” Eubanks argued, intended to deflect attention away from the long and well-documented history of oil companies lying about the dangers of climate change. “You look away from what’s there right in front you.”

These messages are not necessarily pitched towards lawyers, judges, or others involved in the actual legal proceedings of a trial. They’re intended to influence public opinion, Eubanks said.

“Courts and legal commentators are increasingly recognizing that the media, through the way it covers litigation, can have a tremendous impact on how individual lawsuits are resolved,” Goldberg wrote in 2005 for the Young Lawyers Committee. He described himself as someone who takes media battles just as seriously as those that happen in the courtroom, a lawyer who “specializes in applying the ‘Iron Triangle’—legislative, media, and broad-based litigation solutions—to help clients solve complex corporate litigation problems.”

References to “The Iron Triangle Defense” appeared in a 2016 PowerPoint presentation Goldberg gave in Nashville, Tennessee, during which he urged companies facing negative litigation or regulations to “develop allies, write articles, work with media.”

Antolini appeared to be on the receiving end of the “Iron Triangle” three years later when she organized a conference on climate change litigation in Honolulu. The day before the conference, which brought together academics, policymakers, and climate activists, Antolini received an email from Goldberg asking her to “postpone” portions of the event “until you can include panelists who can represent each side of this issue.”

“It’s just ridiculous,” she said, explaining this was the only such request she’d received in her more than two decades as a law professor.

A week or so later, Goldberg got a letter to the editor about the conference published in the Honolulu Star Advertiser. “I expect activists to believe their propaganda, but not well-respected law school faculty. Denise Antolini could not be more wrong in saying that suing energy manufacturers over global climate change was somehow ‘tried-and-true,’” he wrote.

Antolini decided to respond directly to Goldberg. “Your request to disrupt our public event was quite surprising, especially coming from far across the continent, from someone I’ve never heard of, on behalf of a private client with an apparently direct financial interest in chilling debate about climate litigation, with no apparent connection to Hawai’i, and with, it seems no understanding of the climate crisis we are facing in the island and the Pacific,” she wrote in a letter addressed to his office at Shook, Hardy & Bacon.

She never received a reply.

Follow Geoff Dembicki on Twitter.