Lyndal Rowlands

Amy Westervelt

We called this show Damages because fossil fuels have been causing a lot of damage. At UN climate negotiations, the conversation around damages is called loss and damage. But after nearly 30 years, these negotiations have yet to achieve their ultimate goal, deterring polluters from causing more irreversible damage.
And if we continue to believe that those who pause it shall get away without payment. At all times. It is only a matter of time before they to become victims of their own negligent behavior. Even if we are to S upfront, this was the Prime Minister of Barbados, Mia Motley speaking at the UN Conference on Trade and Development in 2019.
Motley is part of a long line of leaders of island states that have been asking who will pay for the damage caused by climate change for more than 30 years. Back in 1991, when Vanuatu first brought up compensation at UN climate talks, there was still time to stop the climate crisis from causing the kinds of extreme harm we're now seeing become more common.
But even as the worst fears expressed by countries like Vanuatu have come true, Discussions around who should pay have been going backwards. So much so, that in 2012, after 20 years of negotiations, rich countries managed to get words like compensation and liability almost completely erased from UN climate talks altogether.
Instead, governments now use the term loss and damage, and even those words are considered controversial. Yeah, despite nearly three decades of delay, countries like Vanuatu are far from giving up. After the last UN climate conference, a group of countries led by Vanuatu decided to turn to the International Court of Justice.
And they have a growing body of evidence to support their claim, including from the Intergovernmental Panel on Climate Change, or IPCC, which has now acknowledged that climate change is also connected to the economic inequality caused by colonialism. Thirty years after negotiations begun, many of these countries are already experiencing economic costs greater than the size of their annual incomes from climate induced disasters.
For this episode, we dug up footage from fossil fuel industry lobbyists who attended UN climate negotiations and claimed that calls for loss and damage was some kind of shakedown or money grab. But, as Mia Motley explains, the underlying motivation has always been about preventing further damage. The loss and damage funds.
So those responsible for the stock and growth of greenhouse gases, therefore will not only provide the financing, but will provide the kind of change incentives that we need to bring a halt to climate change. Who feels it, knows it? Those who must pay will alter their behavior. That's the story we are looking into this episode.
Welcome back to Damages. I'm Lindell Rolands.
We can take drastic action now to ensure that we prevent a future where super typhoons become a way of life. Back in 2013, Yeb Sarno was representing his home country of the Philippines at the 19th Conference of the Parties of the UN Framework Convention on Climate Change, or COP for short, when a super typhoon destroyed his hometown.
Well, we're going to turn now to the disaster in the Philippines, where officials fear the death toll could hit 10, 000 after one of the strongest storms ever cut a devastating path of destruction across the country. Where we have to ask ourselves, can we ever attain the ultimate objective of the convention, which is to prevent dangerous anthropogenic interference with the climate system.
By failing to meet the objective of the convention, we may have ratified our own doom. And if we have failed to meet the objective of the convention, we have to confront the issue of loss and damage. Loss and damage is a reality today across the world. Sarno made an emotional speech at the meeting, announcing he was going to start a hunger strike until rich countries agreed to help countries like the Philippines prepare for super typhoons and other disasters that are becoming more severe and more frequent with climate change.
Rich countries agreed to create a fund of 100 billion per year by the year 2020 as a starting point. In the years that have followed, rich countries, including the United States, have backtracked and minimized the small commitment they made at the end of COP 19. And they've worked hard to scrub the idea from negotiations as much as possible.
Uh, but rich countries were totally against the terminology of liability and compensation. So a deal was struck that the terminology of
This is Harsheed Singh, an expert on UN loss and damage negotiations, who works for the Climate Action Network. Instead of focusing on compensation, rich countries wanted to focus on global solidarity, sharing technical know how as well as loans to countries that are no longer able to get insurance as disasters become more frequent and severe.
Here's Singh again, explaining how it was the island state of Vanuatu which first brought up compensation at UN climate talks back in 1991. Uh, so Vanuatu on behalf of a small island states group called EOSES. Uh, brought it up in 1991, uh, referring to sea level rise and how it's going to affect people and, and cause irreversible, uh, impacts.
And they called for a compensation mechanism, which was acknowledged as insurance in the convention. The UN Framework Convention on Climate Change or UNFCCC. Was signed by 154 countries at the Rio Earth Summit in 1992, one year after Vanuatu had brought up the question of compensation. The convention aimed to prevent dangerous human interference with the climate system.
Although the Convention did not refer to compensation specifically, it did establish that some countries which were more likely to experience the effects of climate change would need financial assistance. So by the time COP26 in Glasgow happened in December 2021, Vanuatu and other island states had been waiting 30 years for rich countries, which have also contributed by far the most to causing the climate crisis, to make some kind of acknowledgement that polluting governments and corporations should help pay for the damage they've caused.
But people in governments that wanted faster action on climate change weren't alone in trying to influence the outcomes of negotiations. From the very first Earth Summit in 1992, lobbyists from the fossil fuel industry were also making their own case, by employing propaganda techniques, including the classic strategy LLC.
Denying the science. I would now like to introduce Bill O'Keefe, executive director of the American Petroleum Institute and past chairman of the GCC. Bill was in Buenos Aires with us for almost the whole two weeks, or at least about a week and a half, I believe, and has some observations that he would like to give you.
This is Connie Holmes from the Global Climate Coalition, a lobby group that sought to undermine climate action in the 1990s. She's introducing Bill O'Keefe, the executive director of the American Petroleum Institute to journalists at a press conference, soon after they had both stepped off the plane from two weeks of UN climate negotiations at COP number four in Argentina.
Thank you very much, Connie, and they are observations. Uh, I'd like to commend Connie for staying through to the bitter end, and I'll put emphasis on bitter. Uh, my plane left at 10. 30, so I just left in the early afternoon, but Connie stayed. Here, O'Keefe explains how fossil fuel lobbyists stayed at UN climate negotiations until what he calls the bitter end.
O'Keefe went on to falsely deny the scientific basis for UN climate negotiations, before telling journalists that increased CO2 could even have potential benefits. There is no scientific consensus contrary to what people assert. There is emerging science that we've ignored the benefits of increased CO2.
Other speakers at the press conference echoed O'Keefe's claims. That the jury was still out on the science, even though at the time we know that even the fossil fuel industry's own scientists had been telling them differently for several years. So by 92, we already have, they already got a template. They already got an organization.
They've got their rhetoric down. They've got the organization down. You know, the importance of the GCC is really pretty immense because it just, it really gave a, a field test. To their strategy to delay climate action. Environmental sociologist Robert Bruhl has just published the first peer reviewed paper on the Global Climate Coalition, or GCC.
It was originally organized by the National Association of Manufacturers and included trade groups and corporate representatives from every industry that stood to lose profits if emissions were regulated. Bruhl notes that in addition to casting doubt on climate science, the group hammered home two key points, economics and sovereignty.
Play up the economics, play up the economics, play up the threat to the American way of life, and then talk about international inequality, talk about energy security, talk about anything international that we can use to, you know, throw at this, at this thing. Akif, for example, describes countries asking for financial assistance to respond to climate change as While I was there, the image that was created in my mind is the movie Jerry Maguire.
And you can decide who Tom Cruise is and who Cuba Gooding was, but clearly a lot of the discussion was about, show me the money. So right out of the playbook, Brewer lays out in his new paper. There's a theory and practice of climate obstruction, and these guys are the masters of the practice because they've been doing it for 33 years.
So far they're 33 and 0. They've won 33 years in a row. At the time, the projected costs of climate change were not yet as high as they are now. It was all about transfer of wealth. It was interesting, there was very little discussion of the science, and I've concluded, uh, that that is with good reason because in the past year, The science has turned against this protocol.
O'Keefe's claims that developing countries were using climate negotiations as a way to transfer wealth not only ignored the costs of climate change to developing countries. But also erase the close links between the fossil fuel industry and colonialism that have seen the mass transfer of wealth in the opposite direction.
You know, it's clear that colonialism and the fossil fuel era reconfigured the world economy. This is Harpreet Paul. She's a human rights lawyer and a member of the Make Polluters Pay coalition. The Indian subcontinents share of the global economy shrank from 27 to 3% between 1,719 50, and it's estimated that the, at the same time, the UK benefited by approximately 45 trillion US dollars from its colonial rule of the Indian subcontinent alone.
And there are similar stories to be told. of colonial endeavours in the Americas, um, in the African continent and beyond. As Paul explains, the economic costs of climate change are only the latest in a long history of economic extraction and transfer of wealth away from developing countries and Indigenous peoples.
And the economic costs of loss and damage is predicted to reach between 290 and 580 billion US dollars by 2030, and that the upper end, that would equal more than the combined GDP of the world's 80 poorest countries. And it's not just island states. The recent deadly heatwaves in India and Pakistan are just one more example of what climate damages look like.
The loss and damage fund that rich countries agreed to create was meant to begin with 100 billion a year. But so far, a lot of the money has come in the form of loans that add to the debts countries are already incurring from climate induced disasters. The Jubilee Debt Campaign has described the situation as a climate debt trap.
Here's Prime Minister of Barbados, Mia Motley, again. The bottom line is, to build back, we have to borrow, and when we borrow, it is added to our debt to GDP, and when our debt to GDP rises, our credit rate drops, and then we are unable to meet. the basic fundamental demands that normal development requires of us.
There has to be a recognition of being able to isolate that debt which is necessary to build resilience or to build back from a climate disaster as opposed to the normal aspects of development. Instead, as Hajit Singh explains, polluters continue to receive incentives in the They are getting subsidies to the tune of 11 million a minute, 11 million a minute, uh, and yet they're not being held accountable, uh, and they're using these public resources and further causing the problem.
Far from developing countries being the ones that are rent seeking, Paul points out that climate change is part of a much bigger picture of colonialism. And of course that has a long history of, um, following a colonial pattern of extracting and exploiting local communities, um, and leaving them in very, very precarious context, um, less able to withstand shocks, whether they're economic shocks or, um, political or climate, to be able to respond in the same way.
Hi, my name is Aisha Siddiqa, I'm an environmentalist, storyteller, advocate for human rights, and I work with polluters out. Together with other youth climate activists, Siddiqa has been campaigning to stop including fossil fuel companies in UN climate negotiations. There were over 500, uh, fossil fuel industry delegates at the conference, and that's more than any country alone.
Like, no country had over 500 delegates. As Siddiqa describes, the climate crisis is the extension of a long history of colonization. For all the exploitation that has happened in your land, for all the stealing and pillaging that has happened by the hands of white people, they have now not only looted from you, they're killing themselves in the process as well.
Even as the devastating impacts of climate change have spread to countries like Australia and the United States, fossil fuel lobbyists have continued to call for more delays. Whereas back in 1998 at that GCC press conference, speakers suggested that we wait and see how things are in 2020. At more recent COPs, the focus has shifted to the vague commitments of net zero by 2050.
After COP26 in Glasgow again failed to deliver any progress on loss and damage, almost 10 years after Yebsano's hunger strike, Vanuatu and other island states decided to escalate their case with a plan to go to the International Court of Justice. If you look at small island states who have approached the International Court of Justice, that clearly shows the kind of frustration and desperation they are going through.
When Vanuatu reaches International Court of Justice to talk about adverse effects, we need to look at how we have failed over the last three decades. Uh, not only in reducing emissions, but also helping countries to prepare for the climate impacts that were inevitable. So it is actually a failure of the range of climate action that we should have seen over the last 30 years.
The next step will be to win a vote at the UN General Assembly. Negotiations at the UN Framework Convention on Climate Change need to have a vote by consensus, which means that all governments, including polluters like Australia and Saudi Arabia, have to say yes before anything happens. At the UN General Assembly, Vanuatu will only need a majority of countries to support its proposal.
Since more than half of the countries at the UN are developing countries, which have long supported the idea that countries that have polluted more should take more responsibility, it's possible, but far from assured, that Vanuatu's proposal will win a majority vote. And as far as the, um, UN and its representatives are, are considered, yes, there's more Global South Nations present than Global North Nations, but there is also a financial power balance.
And even if one vote counts as one vote, that does not necessarily mean that one vote doesn't have more power over. Like the Maldives vote versus the United States. Sadiqa says she and other young people quickly learned about the unequal balance of power at the UN level. We had just organized a 7. 6 million strong march internationally.
And no one at the UN level was willing to talk to us. But this hasn't deterred youth climate activists, who think that more scrutiny of UN climate talks will help reveal the need to remove conflicting interests, including fossil fuel industry delegates. The fact that this IPCC included that social data, the fact that colonialism is now explicitly mentioned, um, turns that whole phenomena on its head.
Climate science, for the longest, was stuck in jargon and that's why the youth movement was able to, like, become so big so fast. We broke down that jargon and we made it accessible to the masses. Way back in 1988, the World Meteorological Organization and the United Nations Environment Program created the Intergovernmental Panel on Climate Change, or IPC as it's often referred to.
IPC reports have formed a basis of evidence that is now often referred to in the growing number of climate litigation cases making their way through courts around the world. And already this year, the IPCC has released two more important new reports. This latest IPCC report is significant for many reasons, but one is because for the first time since 1988, the IPCC has acknowledged the connection between colonialism and climate change.
This is an important development for the IPCC, as Harpreet Paul explains. In the recent IPCC report, where, um, the authors looked at adaptation and losses and damages, it was really clear that marginalization, exposure to colonialism, um, economic disparities, really at the heart of disproportionate exposure to climate change impact.
This recognition in the IPCC report provides further evidence to support the case of countries like Vanuatu, including in their bid to get a majority of countries in the UN General Assembly to vote yes in September 2022. Negotiations on loss and damage will also continue when COP takes place later in 2022.
That was our reporter Lyndall Rowlands. I'm Amy Westervelt. If you listened to our episode on ecocide, you heard that there's a plan to take climate change to the International Criminal Court. Solomon Yeo and the group Pacific Island Students Fighting Climate Change are trying to get the other big international court in the hake, the International Court of Justice, to weigh in on climate change too.
What we're only seeking here is that we can have more clarity on government's obligations to protect the rights of the current and future generation, young people. The purpose of the campaign for an advisory opinion from the International Court of Justice is to get the court to clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change.
Our human rights, even our basic human rights of people around the Pacific, and I believe so elsewhere around the world, are impacted by climate change. Just basic rights such as right to water, right to life, right to food, all these basic rights being discounted heavily. Damages is an original Critical Frequency production.
Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment.
project. Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the Feil Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.

S2, Ep4 Transcription

Compensation for climate change has been a hot topic at the UN since the early 90s. For countries already experiencing what the UN calls loss and damage the main goal has always been to prevent more damage. But fossil fuel lobbyists had different ideas. Now a new IPCC report gives evidence that could influence what happens at the UN and in court cases around the world.

Welcome back to Damages. I'm Amy Westervelt. Today, something people outside of the legal profession might not know about or think about much, the common law and civil law systems. These are the two systems in place in most countries in the world. The common law tradition emerged in England during the middle ages and was applied across British colonies all over the world.

The civil law tradition developed in continental Europe around the same time and spread to the colonies of European imperial powers like Spain and Portugal. That's where you'll find civil law systems through most of Latin America and Europe, but common law systems. in English speaking countries like Australia, Canada, the UK, of course, and yes, the U.S.

Civil law was also adopted in the 19th and 20th centuries by countries that formerly had their own distinct legal traditions, including Russia and Japan. Why are we talking about this? wonky, dry detail about the mechanics of courts? Well, because there are more than 1, 800 climate cases happening all over the world right now, and they're not all being tackled by the same justice system.

This summer, for example, a group of judges from Germany will head to Peru on a fact finding mission related to a case filed by a Peruvian farmer against the German utility RWE. The case is related to the utility's role in exacerbating climate change. No one thought the German court would accept the case in the first place, but now that it has, the judges are tasked with collecting their own evidence.

A concept that might sound really strange to Americans. There's another big reason to talk about common law and civil law right now. You know how there's a lot of talk about precedent in the U. S. and the Supreme Court's willingness to overturn it? Well, Precedent is a key part of common law and there are various ways that it might come into play around both climate litigation and climate policy in the years ahead.

Suddenly the details of how these systems work seem highly relevant. We're going to dig into all of it right after this quick break.

I remember there was a prosecution. You might not remember the case of a very well known American student who was, uh, uh, involved in a criminal case in Italy several years, Amanda Knox. Late today, a 22 year old American student, Amanda Knox, was found guilty in Italy of murdering her British roommate. She was immediately sentenced to 26 years in an Italian prison.

When I asked Alejandro Garo, a professor and senior research scholar at Columbia Law School and an expert on the differences between civil and common law, to walk me through those differences, he started with the Amanda Knox trial in Italy back in 2009. And that really brought up a lot of misunderstanding of what really is normal or not normal in other countries.

You might remember that case from tabloids in the U. S. or some docuseries on Netflix. At any rate, one thing that's not normal anywhere but the U. S. is the presence of juries in civil trials, while criminal trials do have juries in most other countries, as the Knox case did in Italy. Even amongst common law countries, the U.

is unique in providing juries for civil trials, too. Well, one aspect of American exceptionalism, which I think is truly exceptional, is the jury system in none criminal cases in civil cases, like in the Chevron case. Even England, which is the mother country from where the United States copied the jury system, abolished it in the 19th century.

And there are no more jury civil cases, jury civil cases in, in England. And so it's in the New Zealand, Australia and other common law countries that do not have, do not give to juries. The fact finding mission that they have in this country, which is where it's a, it's a constitutional guarantee, actually.

So what you have in Ecuador is really not an exception in Ecuador. What is exception is in the United States, where you have the very complicated trials as this one decided by lay people. And, uh, you know, whether right or wrong, that's the American system. People live with it, uh, but it's hardly would ever be successful in, in other countries, let alone countries like, unlike England, the U of the U S there are no, it's no tradition of jury.

So juries are not really the important part of the legal system in, in non English speaking countries and in civil cases. The United States goes, I believe, alone in still having the jury in civil cases. It's not a given that you'll have a jury in a civil case. In some cases, either the plaintiff or defendant has to ask for a jury trial, but such requests are typically granted.

And that's a really big difference between the U. S. and every other country, but especially countries like Ecuador or Peru or Germany, where it's really up to the judges to evaluate the facts of a case. In, um, civil law countries and the countries of the civil law tradition, Roman based like Ecuador and most other countries in Europe and Latin America, those kind, those countries, it is the practice is generally that the court appoints its own expert.

It doesn't mean that the parties are not allowed to appoint experts. They do. But generally is the court appointed expert to whom the court judge generally will follow is a more objectively neutral, independent type of expert on which most judges in civil law countries will rely, of course, that the plaintiff can pay and retain its own expert and the respond to the defendant can do her own.

That's no problem. But again, statistically, judges in most civil law countries Respect and follow the court appointed expert even more to a greater degree than the party appointed experts on which they do not have much trust. The American system is otherwise. Even though judges in the United States do have the power to appoint their own experts, they rarely do it.

It's a job of the lawyers of the parties. Each one pays its own experts. And you are engaged in this, in my view, somehow shameful battle of experts. The other big difference centers on the importance of precedence. Countries with civil law systems have comprehensive, continuously updated legal codes that specify how to handle pretty much any case that might appear before the court.

When there's a question, it'll get sent to the constitutional court. That's what happened, for example, in the case of Ecuador's rights of nature legislation. The court is currently reviewing several cases in which there were big questions about how to apply rights of nature, and their ruling in the first of those cases, where they ruled in favor of the Los Cedros cloud forest, was very prescriptive for that reason.

It tells administrators and legislators how they should be applying this law. So, ideally, there won't be more cases like the Los Cedros case. Here's Constanza Prieto, the Latin America legal director for Earth Law Center. They talk about the forest, but not only the forest, about also the biodiversity, and also about the water, and also the call to apply principles.

And also, um... They explain what means for the authorities all these rules. So, it's saying basically, it's giving like a class of what should mean for the authorities and for the, um, also for the judge and also for the legislative power what means a right of nature. Under common law, the system in the U. S.

and most other English speaking countries, the law is not really codified. In other words, the court is not functioning according to a set of prescriptive laws. Yes, there are a few governing principles the right to a jury trial, for example but for the most part, the common law system operates on precedent.

So the law shifts as the court decides cases, but then once it shifts, it's supposed to remain fairly static, barring major changes in society or the government, which is interesting when you think about the fact that the United States has this really rigid constitution. We're pretty unique among modern democracies in our refusal to update that document.

But the way that the constitution is applied by the courts. Kind of changes all the time. We're seeing that now in a big way with the recent leaked draft opinion from the Supreme Court that's set to overturn the landmark 1973 decision in Roe versus Wade. The reversal of that legal precedent will have cascading effects not just for social norms and access to abortion, but also for countless legislative issues and policies.

Those surrounding fertility, for example, and the freezing of eggs or embryos. Or the decisions some states are likely to make around criminalizing abortion. Here's attorney Laura Coates explaining the importance of precedence with respect to the Roe decision on CNN. The idea of precedent. This has come up a great deal.

Now, Alito mentioned it in the form of stare decisis, a fancy way of saying things should actually stick. This is what it is, and the inertia will keep going. So if we were, we're not really on, on, um, in surprise because we saw how the Supreme Court allowed Texas to do an end run around precedent. They did not honor it in that way.

But I think most people thought about maybe it'd be parameters. Maybe the week when the compelling interest of the state, um, to protect, protect, protect an unborn fetus would outweigh the compelling interest of a state of a woman to carry a pregnancy at a particular part of a trimester. We thought the primaries might be massaged.

The obliteration of it speaks volumes about the inequality. And it will impact people who do not have the means. But it will not stop abortion in this country. It will likely just stop abortion for those who do not have the luxury of choice. And what is the story of America if not that? For those watching various climate cases, it's a really big deal too.

Supreme Court justices are expected to rule on another big precedent question in June, this time in a climate case, West Virginia versus EPA. The case questions the court's previous decision to grant the EPA the right to regulate greenhouse gas emissions. Even though that right is not granted in the Clean Air Act or any of the environmental legislation establishing the EPA.

I spoke with attorney Jason Reilander about that case and the potential for that precedent to be overturned earlier this year. The Supreme Court has already ruled in a couple of different cases that EPA has authority to regulate greenhouse gases. They said so first in Massachusetts v. EPA. They said so in the AEP v.

Connecticut case. And they also said so in, in another case, uh, that, that came a couple of years later. And so, you know, to the extent that the court wants to get into this sort of major questions about what Congress has spoken clearly to in terms of, of authority for agencies to regulate, that big question has already been addressed.

What we're really getting into now is sort of the weeds of whether section 111. allows EPA to create a best system of emissions reduction that would lead to the most effective and efficient reductions in, in greenhouse gas pollution. And that's the kind of question that is usually left to agency discretion.

That's why in the wake of Roe, there was a call for the establishment of legislation that would enshrine the right to choose in law. And why, similarly, there have been calls to establish the EPA's right to regulate greenhouse gas emissions more officially. Although, of course, none of that would necessarily mean that these laws wouldn't be challenged, but it's historically been a bit harder to topple both precedent and legislation in the U.

than one or the other. There's another big precedent setting case that's relevant to climate. Citizens United. That was the 2010 Supreme Court decision that opened the floodgates to dark money in politics and further eroded the line between individual rights and corporate rights. Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual?

A corporation, after all, is not endowed by its creator with inalienable rights. So, is there any distinction? That Congress could draw between corporations and natural human beings for purposes of campaign finance. What the court has said in the First Amendment context, New York Times vs. Sullivan, Grosjean vs.

Associated Press. And over and over again is that corporations are persons entitled to protection under the First Amendment. That was elite Justice Ruth Bader Ginsburg questioning attorney Ted Olson with the firm Gibson Dunn, who argued and won the case. Just a quick recap here. That case was about a film that had been made criticizing Hillary Clinton the first time she tried to run for president.

It was funded by a cohort of right wing organizations and corporations, including Koch Industries. So the Federal Election Commission had said the movie couldn't screen without identifying itself as campaign material and noting its funders. The filmmakers and their attorneys argued that this violated their free speech rights.

And they won, opening the door to unlimited corporate funding of political propaganda. But Citizens United didn't just set a new precedent, it also built on an old one. And Mobil was one of the leading corporations to fight for that legal right. This is Dr. Robert Bruhl, an environmental sociologist at Brown University.

There was a pretty big effort. To get a Supreme court ruling that basically supported corporate speech and the right of corporations to do advertising of their, not just product, product advertising, but of their, you know, positions. That Supreme Court case was First National Bank of Boston v. Bilotti.

First National, along with two other banks and three corporations, wanted to spend money to publicize their opposition to a ballot initiative that would permit Massachusetts to implement a graduated income tax. The Attorney General of Massachusetts said that violated a state law against funding campaigns that would influence the outcome of a vote.

The bank sued and the case went to the Supreme Court in 1977. The ruling came out in 1978. Here's Supreme Court Justice Louis A. Powell giving that ruling. The First Amendment's primary concern and therefore the court's concern always has been the preservation of free and uninhibited dissemination of information and ideas.

If the restrictive view of corporate speech Taken by the Massachusetts court were accepted government would have the power to deprive society of the views of corporations. Powell is also credited with crafting the infamous Powell Memorandum, which outlined the pro corporate strategy that would guide the Republican Party from the early 80s to today.

Bilotti is generally considered the precursor to Citizens United, and Mobil Oil was hugely influential in securing that ruling. Here's Robert Kerr, a researcher and journalism professor at Oklahoma State University, who's written two books about the evolution of corporate free speech and mobile's role in it.

You know, it actually was very close when it first got to the Supreme Court. The justices could have gone the other way. Um, but, you know, I, well, you know, in the book, I get into how Justice Powell kind of really finessed it and got that first, um, precedent setting case, Belotti, into, into the case law. Yeah.

And, uh, and then later when, um, When it got to Citizens United, uh, Justice Kennedy kind of ignores the overall body of case law and he goes back to Bilotti 24 times. It's really unusual to cite one case 24 times. So why does any of that matter today? Well... In addition to changing public discourse forever, it also laid the groundwork for the argument that oil companies are using now to defend their role in spreading climate disinformation.

In some two dozen climate liability cases, the oil companies are being accused with misleading the public on climate. The lawyer appointed to speak for all of the companies in these cases is Ted Boutros, who's not only a well known First Amendment attorney, but also a partner at Gibson Dunn, the firm that secured a win in Citizens United.

Here he is speaking on the Climate One podcast in 2020. I do want to take head on the notion that the plaintiff's lawyers in a lot of the climate change cases have been advocating is that the oil and gas companies were, they had secret knowledge and they were then putting out, you know, misinformation and they tried to analogize it to tobacco and other areas.

It just, it doesn't make any sense because it was well known the federal government knew the problems of climate change, the potential causes, and knew that there was an issue here. Other attorneys are making this argument on behalf of the oil majors as well. When it exhausted all options to dismiss the fraud case against it in Massachusetts, ExxonMobil filed an anti slap suit against the Attorney General's office there, claiming that the fraud case amounted to an effort to quash the company's First Amendment rights.

SLAPP stands for Strategic Litigation Against Public Participation. Anti SLAPP statutes were meant to protect the press and civil society groups from corporations that wanted to silence their critics. But these days, it's become equally common for corporations to use them to swat away legal complaints.

Here's attorney Justin Anderson, a partner with Paul Weiss, ExxonMobil's law firm, at a March 2022 hearing about that case in Massachusetts. The alleged misrepresentations are the statements that ExxonMobil has made about its views on climate policy, on energy policy. The anti SLAPP statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset, before burdensome discovery is imposed on the party.

Before we have our executives come in to give testimony and depositions before we're dragged into a courtroom where we have to defend ourselves. That phrase he uses, petitioning activity, is really key here because what it means in plain English is political speech. And the argument ExxonMobil is making here, and that Boutros has been making as well, is that because the oil company's campaigns on climate are political speech, not commercial speech, they're protected by the First Amendment.

There are some, even for these justices, there's some reason for them to at least think about whether they really want to get rid of the fraud exception, you know? I mean, if you could argue that the First Amendment protects fraudulent speech, then, um, Oh my gosh, that's almost unimaginable. But with this court, you know, some of us have to consider the unimaginable.

So there you have it, a quick primer on common law versus civil law, why precedent is so important, and some of the very big reasons why these mechanics of the court really matter. That's it for this time. Thanks for listening. Still coming up this season we've got an interview with Rhode Island Senator Sheldon Whitehouse on why so many public interest law firms and right wing organizations spend so much time and money on amicus briefs.

Plus a look at the difference between the human right to a healthy environment and rights of nature. Come back for that, and make sure you're subscribed so you don't miss new episodes or our next season.

Damages is an original Critical Frequency production. Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld. With additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment Project.

Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the FILE Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.

S2, Ep5 Transcription

In many of the countries where some of the world's largest climate cases are unfolding, the legal system looks very different than it does in the former English colonies. In much of Europe and Latin America, for example, the Roman system dominates and it works very differently, with judges gathering their own evidence in cases. Another key difference? Reliance on precedent in common law countries like the U.S. ... a topic that's becoming more important to understand every week.

Damages S2

S2, Ep5 | On Judges, Juries, and Precedent

S2, Ep4 | What Can the UN Actually Do About Climate?

Law & Order meets the climate crisis as we dig into the stories behind the hundreds of climate cases around the globe. Listen here or 

Damages

For decades now, the fossil fuel industry has told the same story: Oil equals development and prosperity. Access. Equality. Stability. A better quality of life. As the world’s fossil fuel companies race to tap the last of the planet’s oil reserves we have a chance to examine that promise up close, in real time.

Several miles off the coast of Guyana sits one of the world’s largest oil reserves. In 2015, ExxonMobil, which had held offshore drilling leases in the country for decades, announced it had found oil and would begin production as soon as possible. Government officials quickly got in line, and in 2019 the first barrels shipped from ExxonMobil Guyana. Today, Exxon projects that oil from Guyana could account for 25% of its total production in the next few years. But environmentalists and government corruption watchdogs have begun to push back on the project. Why 

 an oil industry in the midst of climate crisis? And especially in a country at great risk of climate impacts? Via a contract that will sooner put Guyana in debt than make it a rich oil state, no less?

In just a few years, Exxon has co-opted both government and civil society, buying up social license in every corner of the country. Oil executives and Guyanese officials are still telling the story that oil equals development and prosperity, and on paper Guyana is the fastest-growing economy in the world, but average citizens aren’t benefiting from the boom. Today, there’s only one journalist left covering the project with any sort of skepticism, and one lawyer left willing to take it on in court. In this special crossover season of Drilled and Damages, we look at what oil colonialism looks like in the 21st century, and why everyone should care.

S2, Ep4 | What Can the UN Actually Do About Climate?

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S2, Ep5 | On Judges, Juries, and Precedent