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By Dennis Anderson and Jason Reeves (January 4, 2022)

To read this article in PDF format click here.

When Minnesota's Attorney General Keith Ellison announced in June 2020
that his office had filed a climate change lawsuit, the litigation strategy he
described was relatively novel for a climate change case.

Rather than suing the petroleum industry for causing climate change,
Minnesota sued the American Petroleum Institute, ExxonMobil Corp. and
three Koch Industries entities for allegedly engaging in a campaign to
deceive Minnesotans about the links between climate change and fossil
fuels.

The theory behind Minnesota v. American Petroleum Institute is that the
petroleum industry has known since the 1950s, based on research by its
own scientists, that the use of fossil fuels was causing climate change.

But rather than alerting the public about the dangers of using their
products, the defendants — and particularly the API, which is the largest
oil and gas trade association in the U.S. — buried the evidence and
mounted a public relations and marketing campaign to undermine the
science of climate change and persuade consumers to dismiss concerns
about the use of fossil fuels.

The complaint includes excerpts from statements by the industry's own
scientists warning that the unabated use of petroleum products would cause dramatic
environmental impacts. It also includes images from industry advertisements casting doubt
on those predications, including one with a cartoon image of a beleaguered chicken under
the caption, "Who told you the earth was warming ... Chicken Little?"

The state filed its lawsuit in Ramsey County District Court, asserting claims based entirely
on state law — specifically, on Minnesota statutes prohibiting consumer fraud, deceptive
trade practices, false statements in advertising and Minnesota common law.

The state's complaint asked the court to enjoin further violations of Minnesota law, order
the defendants to pay restitution for harms allegedly suffered by Minnesotans because of
past violations, and order the defendants to fund a public education campaign to correct
misunderstandings about climate change allegedly caused by their marketing and public
relations efforts.

Since the case was filed it has been snarled in procedural issues. The defendants
immediately removed the case from state court to the U.S. District Court for the District of
Minnesota, presumably because federal courts are widely perceived as more friendly to oil
and gas interests.

But in March 2021, the federal court rejected all the defendants' arguments that the case
should be heard in federal court, and remanded it to state court. The defendants appealed,
and asked the federal judge to stay his remand order while the appeal was pending. In
August 2021, the judge granted that request.

The result of the stay is that the case is in limbo until the U.S. Court of Appeals for the
Eighth Circuit decides which court should hear it. The parties have not yet reached any of
the substantive issues in the case, and there's no telling when they might get the chance to
do so, because the timeline for the appeal is uncertain — so uncertain, in fact, that the
district court said it would reevaluate the stay if the appeal is not resolved within 12
months.

While the litigation in Minnesota v. API may be on hold, the strategy behind the lawsuit is
gaining traction elsewhere. In September 2021, the state of Vermont brought a lawsuit
under Vermont's consumer protection laws, alleging that the petroleum industry's marketing
deceived Vermont consumers about the climate impacts of fossil fuel use.

Congress has also taken up this line of inquiry. On Oct. 28, 2021, two congressional
committees held a joint hearing to examine the fossil fuel industry's campaign to spread
disinformation about the role of fossil fuels in causing global warming. The hearing was a
follow-up to letters requesting internal documents relating to the industry's public relations
efforts, to which the industry responded by providing documents already available to the
public.

Lawmakers were clearly not satisfied. Following the hearing, Rep. Carolyn Maloney, D-N.Y.,
chair of the House Committee on Oversight and Reform, announced that her committee
would step up the pressure by issuing subpoenas demanding the production of internal
documents not previously provided.

Minnesota's lawsuit has also drawn comparisons to the landmark tobacco litigation of the
1990s. The state's 1994 lawsuit against the tobacco industry in Ramsey County District
Court, Minnesota v. Philip Morris, alleged a 50-year conspiracy to defraud Minnesotans
about the hazards of smoking, and sought money for, among other things, a corrective
public relations effort. It was the only state case against the tobacco industry that went to
trial.

The state succeeded in getting access to 35 million pages of previously secret tobacco
industry documents, and prevailed over the defendants after a 15-week trial. The case
eventually led to the $206 billion master settlement between major tobacco companies, 46
U.S. states, the District of Columbia and five U.S. territories, which is still the largest legal
settlement in history.

Rep. Ro Khanna, D-Calif., chair of the House Oversight Committee on the Environment,
compared the questioning of oil industry executives before his committee to the 1994
interrogation of tobacco executives about the addictive characteristics of their products.
Tobacco executives denied knowing that nicotine was addictive — despite the industry's
internal research showing the opposite — fueling a backlash that helped contribute to the
eventual settlement.

Minnesota insiders who worked on the tobacco case have recognized the parallels, and
Ellison has been vocal about them as well. In October 2019, a year before the filing of
Minnesota v. API, at an event at the University of Minnesota Law School, Ellison recalled
Minnesota's successful tobacco litigation, and suggested that climate change litigation could
follow the same pattern.

Placed in context, Minnesota v. API is another creative attempt by motivated plaintiffs to
broadly hold carbon majors accountable through litigation. Like Massachusetts v.
ExxonMobil, first filed in Massachusetts Superior Court in 2019, which added a viable state
securities angle to climate change lawsuits, it opens another litigation front — greenwashing
and deception — against carbon majors.

These two new angles follow the more traditional nuisance lawsuits, which have stalled as
the parties await the outcome of the U.S. Court of Appeals for the Fourth Circuit's Baltimore
v. BP PLC remand decision.

The skirmishing around whether climate change lawsuits will be heard in federal or state
court — years after the lawsuits commenced — confirms the high stakes in these cases, and
the gravity of the lawsuits. That these lawsuits have not been dismissed for standing like
the first wave climate change lawsuits, including Comer v. Murphy Oil USA Inc. and Kivalina
v. ExxonMobil, is also significant.

Clearing the obstacle posed by Federal Rule of Civil Procedure 12(b)(6) may represent
confirmation of the widely held belief that it is only a matter of time before one of these
lawsuits is successful. It also confirms that improved attribution science supporting the
lawsuits narrows the likelihood of motion practice success by defendants.

As attribution science continues to advance, other substantive defenses may be limited, and
new causes of action may also become viable. The trend must also be seen in the context of
evolving public opinion, and an increased call for accountability and climate justice.

Lawsuits like these will continue and evolve until there is a policy solution to climate
change. The danger of creating policy through litigation may have unforeseen consequences
for carbon majors and their liability insurers.

Dennis Anderson is a senior associate and Jason Reeves is a senior partner at Zelle LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views
of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This
article is for general information purposes and is not intended to be and should not be taken
as legal advice.