Big Oil could use the pandemic to get legal immunity from Congress

But some lawmakers are drawing a line in the sand.

Credit: Mark Strozier

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Picture this: ExxonMobil, the largest oil company on earth, announces that it will spend a million dollars to lobby for a tax on carbon emissions. Yes, that Exxon: the one known for cheating humanity out of decades of climate policy by running an extensive campaign to undermine climate science, publicly backing a proposal that seems to fly in the face of its bottom line.

This actually happened, almost two years ago. The company welcomed heaps of praise for finally taking the problem seriously. For those of us working on climate at the time, it sounded exactly as fishy as you might imagine. 

As it turned out, Exxon did not have a come-to-Jesus on climate change. Rather, they and a handful of conservative, fossil-fuel-friendly lawmakers agreed to tax carbon at $40 per ton (far less than anything meaningful) in exchange for a rollback of the Obama-era Clean Power Plan. And the bill included what the company was actually after: a liability waiver for the fossil fuel industry.

What on earth is a liability waiver?

A liability waiver is like an invisible force field — if an industry can get one from Congress, that industry is shielded from lawsuits that would make them pay for the damages their products cause. 

To date, only one industry has ever received blanket legal immunity — gun manufacturers. But as you read this, countless others are aggressively lobbying Congress for their own liability protections to prevent them from being sued by workers or the public during the COVID-19 pandemic. As our executive director, Richard Wiles, told the Washington Examiner, “This is the largest liability waiver orgy in the past 10 years at least.” 😶

A get-out-of-jail-free card would be more than a little compelling to the fossil fuel companies responsible for climate catastrophes that will cost trillions across the globe. This industry now faces over a dozen climate liability lawsuits in the U.S. alone. The communities who brought those cases, as we’ve discussed before, are suing the industry’s heavy-hitters to recover funds to weather the coming storms, fires, and floods, as well as to clean up the damage already done.

Big Oil is well aware that the tobacco and opioid industries, who were not able to obtain a liability waiver, ended up paying billions of dollars in settlements to the communities they wronged. And Big Oil has always feared that they will be next. 

Liability waiver language was ultimately removed from the 2018 carbon tax proposal, known as Baker-Shultz. But now, during a massive push for liability protections from other industries and the Trump administration’s visible glee at handing a bailout to Big Oil, it wouldn’t be a shock if fossil fuel companies took advantage of the pandemic to seek a legal shield. 

In fact, reporting from Drilled News found that just a few days before the Senate voted on the first coronavirus stimulus package, the Senate Homeland Security and Government Affairs Committee draft added language, which failed to make it in to the final bill, that would have given the “energy” sector liability protections as part of the nation’s “critical infrastructure.” 

“They’re terrified of liability,” Vermont Law School professor Pat Parenteau tells me. “You’re talking probably tens of millions just to litigate these cases. That isn’t a lot of money for these companies, but I think their deeper concern is that one of these cases will get to a jury — and then look out. I think the oil companies are looking at some of these other product liability type cases and saying, whoa, we could get socked.” 

There is also the risk of the P.R. nightmare companies face when these cases go to discovery or trial, says Parenteau. The last thing oil and gas executives want is a mountain of evidence of their deception on climate risks put on full display.

It’s unclear to what extent Big Oil would be able to exploit the sort of “temporary” liability other industries are seeking during the pandemic, however long it lasts. But time and again the industry has tried to kill the suits bearing down on them, and even the slightest foot in the door when it comes to liability protections could help them deny communities their day in court. 

Thankfully, members of Congress aren’t just waiting around to see what tricks Big Oil might try to escape accountability.

Last week, a group of 60 Members of the House, led by Representative Jamie Raskin of Maryland, called on House leadership “to categorically oppose any attempt to confer immunity on the fossil fuel industry or to limit its liability for the damages it causes to people or property,” citing the industry’s “decades-long campaign of denial, deceit and disinformation” about climate change.

“Cities, counties, and states across the country are fighting back by taking the companies that knowingly contributed to climate change to court to recover their damages,” the lawmakers wrote. “We should not interfere with ongoing litigation by granting the culpable parties a license to destroy our eco-system with financial impunity and legal immunity.” 

The industry, of course, tried to paint the lawsuits as frivolous even before the pandemic, and is likely to be even louder about that claim now as they beg for federal bailouts. “Bring out the violins,” says Professor Parenteau. “These companies are drowning in money.” 

For cash-strapped communities struggling to address the threat-multiplying risks of climate change on top of COVID-19, on the other hand, the stakes couldn’t be higher — and the culprit could not be clearer.

Now, says Parenteau, we’re left with two paths forward.

“When you’re talking about stimulus bills that are probably going to end up being in the ten trillion-dollar range, where is all that money going to go?” he asks. “Is it doubling down on fossil fuels, bailing them out and giving them immunity? Or is this the moment in time when the country really charts a whole new course?”

Take Action

Ask your representative to sign on to Rep. Raskin’s letter opposing a liability waiver for the fossil fuel industry in future COVID-19 relief legislation here.

If your representative already signed on to Rep. Raskin’s letter, you can thank them for doing so here.

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Until next week!