Phil Goldberg is a Washington, DC-based lawyer who is helping defend the oil and gas industry in the more than two dozen climate-related lawsuits that have been filed against it by local governments across the U.S. Goldberg talks about the history of climate litigation, why the public nuisance claims being made against the industry are “unimaginably broad,” the NGOs that are funding the litigation, and why those NGOs “want to have judges set energy policy.” (Recorded July 26, 2023.)

Episode Transcript

Robert Bryce 0:04
Hi, everyone, welcome to the power hungry Podcast. I’m Robert Bryce. On this podcast, we talk about energy, power, innovation and politics. And we’re gonna get a lot of politics and energy. Today with my guest, Phil Goldberg, he is a special counsel for the manufacturers Accountability Project. Phil, welcome to the power hungry podcast.

Phil Goldberg 0:22
Thanks, Robert. I really appreciate you having me on today.

Robert Bryce 0:25
So now, I warned you. And I’ll just give a brief introduction, you are representing the oil and gas industry against a whole bunch of climate lawsuits that have been filed against it. That is your what the Special Counsel for manufacturers Accountability Project is. But guess on this product. Guests on this podcast introduce themselves. So imagine you’ve arrived somewhere you don’t know anyone you have 60 seconds, please introduce yourself

Phil Goldberg 0:49
there. So as you said, I’m special counsel to the manufacturer Accountability Project. And we speak not just for oil and gas manufacturers, but for all manufacturers because of our concern with these lawsuits. And what they are trying to do, essentially, we can get into this a little bit more when we get to the substance is to try to make manufacturers have to pay for what are really societal and political issues, rather than something truly where the liability makes sense. I’ve been doing that for several years, I’m also a partner at the law firm of shut Cardian bake. And before that I spent 20 years on liability related public policy work worked on the Hill for a few years. And, and so I kind of bring that that background of understanding sort of the intersection of politics and, and liability policy, and really what my job and my goal is to try to help help make the liability system work in a way that that is common sense to all of us. We there are people that try to push the liability system out of whack, whether it’s for money, or to advance political issues, both of which are present in the climate litigation, and try to help the system reach a fair result and be used for the right reasons. I’ve done work with the progressive policies to on civil and civil justice use for that reason, because the goal is to kind of make it make the system work. Right. If that

Robert Bryce 2:16
helps. That helps. It was more than 60 seconds, but there’s no penalty here. So talk uncertain and and these are complex issues. But if you don’t mind, let me just do a little quiz. So you’re based in Washington DC. And the former law firm you said was shoot cardi and bacon. I’m not familiar with

Phil Goldberg 2:38
that one. Sure. cardijn bacon’s where I currently work. And it’s in that while I shook, I also serve as special counsel to the manufacturers Accountability Project. And we’re a big, amla, 100 firm with offices and you know, 1617 cities around the country and seemingly adding one every week or two. And about 500 or more and more lawyers, and mostly known for product liability defense work, but really any kind of high stakes litigation our firm gets involved in.

Robert Bryce 3:08
I gotcha. So you’re, you’re a trial lawyer. You you work at the courthouse.

Phil Goldberg 3:13
I do more appellate and and policy level. We’ve got our firm does a lot of trial work, we probably do more work than anybody else. But my job is more on the dealing with the broader liability issues and dealing with them at the at the appellate court and, and legislative levels.

Robert Bryce 3:31
Gotcha. Okay. Well, I’m there a lot of law firms in America and I wasn’t familiar with shook Cardian bacon.

Phil Goldberg 3:37
Yeah, we’re based in Kansas City. So you know, okay. All right. So

Robert Bryce 3:41
but 500 law firms and you’re a partner there? Yes. Okay. Got it. Okay. And where are you? Where are you from? Where do you go to law school?

Phil Goldberg 3:48
Oh, I grew up in New Jersey. So I’ve got that East Coast mentality. And obviously, we are working for a Midwestern firm always. It’s always fun. But I went to law school here at GW, George Washington University School of Law while I was working on the hill, and and then when I got my law degree, I started doing more the liability policy work.

Robert Bryce 4:09
Gotcha. Okay, so let’s dive into this climate litigation. I just wanted to, because I didn’t. I looked up a lot of this stuff, but I didn’t get your personal bio, though here. So the latest if I can maybe this isn’t the latest, but I know there have now been a couple of dozen lawsuits that have been filed against the oil and gas industry, as well as the coal industry. I know Peabody Energy is one of the defendants, but one of the more recent ones was Mote Noma County, Oregon. They filed the lawsuit it styled Multnomah County versus Exxon Mobil et al. Suing the companies for $50 billion. The claims are for public nuisance negligence, fraud and deceit and trespass, defendants Exxon Mobil, Royal Dutch Shell Chevron motiva oxy Anadarko, space age fuel, I’ve never heard of Valero tau tau marathon Peabody Koch Industries, American Petroleum Institute Western He’s patrolling Association McKinsey and Company and DOS one to 250. Inclusive. I’ve never seen that in a lawsuit. So this is one of how many? Let me ask the first question, because I wanted to just get that in the context for why this matters now is that the Multnomah County, Oregon cases, the most recent one, if I’m correct, but how many lawsuits now are pending? How many of these are you involved in that are the men have been filed against the oil and gas sector or the energy sector in the US energy sector in general?

Phil Goldberg 5:33
Now, there’s probably close to 30. Overall, it was about about two dozen as of two, three months ago. But there’s a coordinated effort by foundations and attorneys and lobbyists, public relations firms to try to bring these kinds of lawsuits. And they’ve been very active in going around the country trying to recruit counties and municipalities and saying, hey, you know, we can try to get you money’s not going to cost you anything, just sign on the dotted line. And, you know, we’ll bring this lawsuit for you. And so, you know, for a lot of communities and elected leaders, they, you know, ostensibly, it’s like, it’s a free kick, and they feel and if they want to do something about climate change, or if there’s an issue, they can say, Oh, we’re doing something. But the truth is that these lawsuits aren’t really doing anything. They’re just a distraction from what really needs to be done. In terms of trying to deal with climate change, you make meaningful progress on it.

Robert Bryce 6:32
And that’s it. So and I but the but the stakes here couldn’t be higher. I’m sorry to interrupt, but I’ve just seems to be Multnomah County either. 3000, what 400 500 counties in the US, they’re asking for 50 billion, every county gets 50 billion, who’s going to produce oil and gas? I mean, it seems to me that one of the I mean, if the potential damages here for the energy sector in general, love them, hate them, whatever, that this could be the bankruptcy of every major energy producer in America, could it not? Or am I overstating things?

Phil Goldberg 7:06
I don’t know that you’re overstating things. But I also don’t think it should get to that because I don’t think the the lawsuits are, are founded either in the facts or the law. And I don’t think at the end of the day, that they’re going to be able to prove their case, you know, there right now, they’re trying, they see a victory and just filing bunch of these lawsuits, because what they want to do is to put the industry on their heels and try to use the public relations and, and all the things that come with the litigation to the words that they said were, you know, to, to hurt them politically. And try to silence them, and make that make them less, you know, less able to go to Congress and talk to American people about what they want to do about climate change and how they’re working on things. And so they’re, they’re bringing all these lawsuits, and you’re hoping they can find a judge somewhere that allow some of these theories to go through. But, you know, but at the end of the day, I mean, even the Supreme Court has ruled on this, they, you know, 13 years ago, yeah, 12 years ago, and 2011 said, these kinds of cases are not, are not what the courts are for. These are policy decisions that need that need to be decided in Congress and EPA. And it’s a good thing, we have these agencies that are experts in figuring out how to deal with with energy policy. And so what these groups are trying to do, and they’ve said this, so you know, it’s their own their own language is they they want to use litigation to raise the price of energy they want all of us have to pay more, to put fuel on our car and to turn on our lights and our factories. But have you because that’s their that’s their solution? That’s one of the things that they want to they want to see.

Robert Bryce 8:43
So I have to interrupt there, Phil, because I think that’s a key point. And when it but I’ve said it many times expensive energy is the enemy of the poor. I mean, just full stop. Right. So who has said that their effort is to? Can you point me to that, that they they’re using rate to increase the price of energy? Because I think that is a key? Absolutely a good foundational point here. If this is

Phil Goldberg 9:05
the lawyers that are involved in the in the Boulder, Colorado lawsuit, have said, you know, radio and papers that it’s that they want to raise the price of fossil fuels through this litigation, and they want to it’s their way of holding in their words consumers responsible for for climate change. And we just fundamentally disagree with that. That’s that that’s an appropriate solution for many of the reasons that you just said, because it’s an incredibly regressive, and you know, and it’s sort of more of an elitist view of how to deal with climate change.

Robert Bryce 9:37
When that’s the part where that I think elitist is the right word here but let’s dive down into the into the details here because I think this is critical and a little bit of background. So the manufacturers have done a little bit of homework here. Manufacturers Accountability Project is a project of the National Association of Manufacturers and nonprofit, the budget I just looked it up I have spent a lot of time on GuideStar and pro publica, national associate manual Association manufactures an annual budget about $62 million. The key here, it seems to me is this the first claim is public nuisance. And what you have said on the map lawsuit and if you want to find out more about this, you go to MFG, accountability That’s MFG. Accountability public nuisance theory I’m reading from the website, though, has nothing to do with regulating global energy supply. And the notion that these communities are entitled to financial compensation, while using the very products, their lawsuits demonize is nonsensical, piecemeal lawsuits are particularly counterproductive. That seems to me, if I’m boiling down your whole reaction to all of this, is that not the gist of the whole thing that these companies, these entities, whatever, whoever they are, they’re using the products and blaming the companies for providing the project products? Is that if I simplified it too much here?

Phil Goldberg 10:58
No, I think you’ve hit the nail on the head. I mean, you know, I think we all agree that the way we have we have used energy source that used it is going to have to change. I mean, electrification, through these energy sources was one of the greatest achievements and has been seen as one of the greatest achievements of the 20th century, from refrigeration to a lot of other things, the way we’ve done that is going to have to change, we’re going to have to find a way to make modern lifestyle, more sustainable for the climate and for the climate. But we’re also going to do it in a way that is sustainable for real people. And that takes innovation. That’s not that you can’t do that through litigation, we’re going to have to find ways to to innovate, how we source these energies in ways that are much more efficient. And that’s fine. And we accept that. And the industry is working hard at that, as are a lot of other people. A lot of manufacturers are making tremendous progress on exactly that proposition. But that’s the way we’re going to deal with climate change. It’s not going to be these lawsuits that are just trying to make it more expensive for everybody else.

Robert Bryce 12:07
But the potential damage? Well, let me let me shift gears here a minute, because there was an important ruling in April, the Supreme Court rejected just reading from the end news report on this rejected a batch of climate liability petitions from oil companies, which the article says paves the way for a flood of lawsuits against the industry to be heard in state courts from Maryland to Hawaii. So you said that just a few minutes ago that the Supreme Court ruled in 2011. Against this, why is the April decision germane here? Why does it matter? Now, if this? Yeah. It’s already said, No, you can’t do this. But there are now lawsuits have been filed. And some bring me up to speed on the why this? What was the petition and why does it matter?

Phil Goldberg 12:56
Well, it’s a great question. And I’ll try to do my best and keeping it short. So this is that we’re in now it’s in the second wave of climate litigation. The first wave started in early 2000s, when through 2011, and 12. And that’s where there was a case where he had a bunch of states suing the utility companies saying, Hey, you’re causing climate change. And you should have to do certain things because of that. And that’s the case that went up to the Supreme Court’s going to AP versus Connecticut. And the Supreme Court said,

Robert Bryce 13:26
and so just to understand this was so that they were suing the electric utilities. Yeah, there are swift and this EP American Electric Power versus Connecticut.

Phil Goldberg 13:35
Yes, exactly. Thank

Robert Bryce 13:36
you. Thank you.

Phil Goldberg 13:37
So and there were there were three or four other lawsuits at the time that were filed. One from an Alaskan village called Kivalina was suing a lot of the oil and gas companies. You had California ag that was suing the auto industry. And you had a class action in Mississippi, suing a bunch of the energy companies relating to damages from Hurricane Katrina. And so the one against the utility companies went up to the Supreme Court. And the Court said that it was brought under this is important, it was brought under federal public nuisance law and federal court seeking injunctive relief. And, again, it was against utilities that were considered the users of fossil fuels. And the court threw that out supreme court threw that out saying that’s not the right use of liability law. This is the legal ruling was this has been displaced. The federal common law here has been displaced because Congress delegated the how to deal with climate change to the EPA through the Clean Air Act. And so this is not a liability issue for the court. It’s a policy issue for for Congress, the Congress and the EPA. And so, at that time, the Kivalina case was pending. And the Ninth Circuit said, Well, if that’s the case with a EP, just because the issues are presented slightly differently here and Kivalina, we’re going to, you know, that shouldn’t matter. We’re going to have All of the Supreme Court, the Fifth Circuit did the same thing. And in the in the Katrina case, and, and then the California case had never really gotten far against the oil industry. And then it was over. And so then you had the people kind of behind these lawsuits, the foundations that the academics, the lawyers got together in California in 2012, and said, well, now how do we use the courts to drive our energy policy, we’re not happy with how things are going in commerce, APA. So let’s do this again. But we have to make it look different from AEP versus Connecticut, or else the courts will just throw it out. So instead of bringing our federal public nuisance law, they went to state public nuisance law set of seeking injunctions, they sought damages. And they kind of went through and tried to make it again, look different and said, but the key to the whole thing is getting into state court, we may we can find a judge who doesn’t who won’t follow the federal US Supreme Court ruling and say, well, these are different enough that I don’t have to follow that. Because every time these cases, even in the current round, has gone to federal court like the you know, the Second Court, you know, the US court appeals, and the Second Circuit looked at the substance of these cases, they thrown them out. They said these are not you know, Avi verse kind of get said, these are not good lawsuits. These are no different. These are you can’t show causation, you can’t show these are policy issues, all the reasons that you know, as to why these lawsuits should fail. And and and dismiss that. That was New York City’s case, which was filed in federal court, all the other cases.

Robert Bryce 16:30
And so just so that was the New York City versus Exxon case, right, that at the end, who was the lawyer for Exxon Mobil, Ted

Phil Goldberg 16:40
Boutrous, probably?

Robert Bryce 16:41
I’m not sure. Anyway, but right at the end of that lawsuit, right. And then the final arguments, the New York City apparently just folded their case. And you know, like, apparently, I don’t remember all the details, but essentially said, nevermind, like they’re they? I don’t know, I’m not remembering this, but it perfectly here. But jump back to

Phil Goldberg 17:01
the lawsuits. But yes, you’re there wasn’t a wrong Yeah.

Robert Bryce 17:04
Okay. So but tell me, so you’ve the objective. And I want to come back to the 2012 meeting that you just referenced, because I want to understand who’s behind all this litigation. But so you’ve given us the background on the 2011 ruling from the Supreme Court shift and tactics by the NGOs to try and still come after the energy sector to go through state court. But why does that bring me so I’m just trying to abbreviate where you’re going? Why does April decision from the Supreme Court matter? Because then it seems like they’re going back on what they ruling back in 2011?

Phil Goldberg 17:36
So the I mean, the law is a funny thing, is essentially the answer.

Robert Bryce 17:41
So we only have an hour here fill

Phil Goldberg 17:44
cases in state court. And the and the energy company said these are the same thing as A B versus candidate. These are federal issues. There are federal legislative issues are not state, the state liability issues. But in order to get into federal court, there’s a whole bunch of different things that they need to do. And the supreme and the a lot of the Circuit said that, you know, the local communities brought these a state law claims, and they’re allowed to do that. And, and we can’t just take them into federal court, just because, you know, we want to there’s certain bars and standards and that they’re not met here, and ultimately, the Supreme Court just decided not to get involved. They said, You know, there was a the energy companies petition to the Supreme Court to say, Hey, can you check on this, you know, with the with the court of appeals are doing and letting these saying these cases can go back to state court, and the Supreme Court said, we’re not getting involved right now, you know, and so they declined the cert, you know, review the case. And so now, as a result, all these cases in April, which were which the industry was trying to get into federal court, are now all going back to state courts to then proceed at the state court level. So these cases have been filed since 2017. Not one of them has an issue on, you know, on the merits, that other than the one in the Second Circuit, I’m saying that, but none of the ones that state court have reached any merit based decision. They’re just, it’s just been this procedural thing of whose ballpark we’re playing. And we’re playing in the state court ballpark, or the federal court ballpark. And now as a result of the Supreme Court saying, Hey, we’re not getting involved right now. It went the cases went to the state court ballpark, and that’s the you know, what has led to a few additional filings because I think people were kind of waiting to see what was gonna happen with that.

Robert Bryce 19:29
Okay, so if I’m reading this right, then what you’re saying is the supreme court said, Well, this isn’t ready for it. We’re not ready for this right now. So this litigation is going to have to proceed through the state courts before we’re going to take it on. But that’s, they may

Phil Goldberg 19:42
or may not take it on, but we’d like to think they if there’s a liability finding here, depending on what happens, we would think the Supreme Court would want to get involved and say, you know, what we said Navy versus Connecticut should apply to these cases as well.

Robert Bryce 19:55
But in the meantime, then the oil and gas industry is going to have to pay a lot of money to people like you to litigate in Multnomah County and and all these other places, because that’s going to be incredibly expensive for them, because they’re going to have to deal with all of this litigation at the various state levels before it’s ripe to be appealed to the federal courts, then is that my is my strategic tree here, correct?

Phil Goldberg 20:19
No, I think that’s probably right. I mean, that’s why we were trying to get, you know, a uniform national response to this litigation, which, which could be done in federal court, as opposed to having this done piecemeal ad hoc in various states, sort of in in various, various versions of these lawsuits. And a lot of this is like, you know, throw a lot of legal spaghetti on the wall and see what sticks there. These cases are being brought under various legal theories they’re targeting, you know, it’s not like it’s all the same companies, it’s various companies, different combinations, permutations of them, they’re trying to see it’s like a legal laboratory. You know, can we get a state what what for me formulation of this of these lawsuits will work? It’s a lot of its political, you know, they want to name out of state companies, a lot of times not, not necessarily in state, but then they name some in states that can get in state court. It’s, there’s a whole lot of machinations that go behind the scenes about how this how this litigation proceeds. So some cases are against one company, some cases are against 30 companies. It’s so political as to who the local political figures want to blame for climate change. And that,

Robert Bryce 21:21
so who are the dos who are the dos one to 250? And I think they’re

Phil Goldberg 21:25
saying like, we can just bring people in later. And that will just fill those blanks in later, right? It’s like Taylor Swift, I got a blank space. And I’ll fill your name in, right? I mean, that’s gonna have work.

Robert Bryce 21:37
I didn’t know about the Taylor didn’t expect to Taylor Swift. Good for my daughter

Phil Goldberg 21:41
is a huge fan. And I drove cross country with her and I got a whole lecture on Taylor Swift ism. So

Robert Bryce 21:48
we’ll see. Well, so here’s one of the I look, there are many questions here. That it but let’s go back to the 2012 meeting. Because I’ve heard about this, there was a meeting in 2012. But even before that, So who are these NGOs? Who is funding all of this litigation? I know that the New York Times David Gillis wrote this flattering profile for a tort lawyer who’s you know, apparently has been called by God to sue the oil and gas industry, which I read with some amusement, and a bit of disgust as well, because I thought, Well, wait a minute, you know, you could sue anyone for the I guess, maybe I’m too cynical. You’re suing over the weather? Well, how do you know that this gallon of gasoline from this company caused this amount of weather? But before I get to that, who are the NGOs? Where’s the money coming from? For all this? It’s it sounds to me, like some is from the the torque bar, but there’s other money coming from foundations NGOs? Where’s where’s it? Can you name the climate integrity? Time?

Phil Goldberg 22:52
Center for Climate integrity is climate integrity. Right? Thank you. That are the mean, they’re the ones that are have been involved in and publicly involved in a lot of these, you know, in a lot of these lawsuits and recruiting communities, and they’ve got various sub organizations that they use to try to recruit, folks. You know, there’s there are other foundations involved, we have a report called Beyond the courtroom, which is on the map website, the MFT, accountability website, that kind of walks through a lot of a lot of this, especially early on, like were some of the, you know, looking at their different foundation reports and kind of who was involved, you know, you know, the Rockefeller Rockefeller Foundation for one, you know, has played a central role in all of this, which is kind of ironic, I suppose. But, you know, but you know, a lot of it is just, for them the ability to bring these lawsuits and leverage the media and leverage the politics around it. That’s their their victory for now. They just want to file these lawsuits so that they can try to try to leverage leverage them for these ulterior outside of the courtroom purposes. And so that’s the first thing is like how many, you know, they talk about successes in terms of measuring how many lawsuits they filed, anybody can file a lawsuit, that’s not the hard thing to do. It’s Can you win a lawsuit, and so far, that hasn’t proven to be the case. And so in 2012, it was this is kind of a cast of who’s who have been involved in all these losses, their, you know, their lawyers, their, their, their academics. They’re funded by some of these groups. And they talked about and I can kind of go through and they This isn’t take my word for it. They put out a report on their discussions. And out of that report, they said, they still believe the courts have the best current hope for setting their national policy agenda. They said that, again, try to make it look different from AP versus Connecticut. And one person said, even if your ultimate goal might be to shut down a company, you still might be wise to start off by asking for coffee. sation for injured parties. And so that’s and they also talked about in there and then subsequent meetings, the idea of creating of naming the issue or the campaign to try to create outrage in people’s minds. And that’s exactly the playbook that we’ve seen followed, you know, since that 2012 meeting.

Robert Bryce 25:19
So this is as much PR as it has anything to do with legal issues, then Is that Is that a fair way to characterize it? I looked at that it was the lawsuit. That was the the New York Attorney General have brought the lawsuit 1.6 seeking 1.6 billion, Exxon was represented by Ted wells, Jr. I

Phil Goldberg 25:38
think maybe you got that right. I’m

Robert Bryce 25:40
just, but Right. At the end, apparently, the state just said, oh, you know, an exon, I’m looking at the headline called the climate case, a joke on the last day of the trial,

Phil Goldberg 25:50
that started out as like this big thing, like, you know, the misleading and lying and a lot of the the what we’ve seen in the in the meat about how their net this narrative that, you know, trying to create outrage in people’s minds. And then it got narrowed down once the court kept saying, Well, you know, you haven’t shown us enough to bring, you know, to validate that claim evidence on us, you have to validate this claim. And the case kept getting winnowed down to finally was just, you know, an investor lawsuit. And ultimately, the judge said, you know, that, you know, the, the claims were hyperbolic, and dismiss the case entirely. And, you know, and so, you know, of any of all this rhetoric that you hear around these lawsuits, the only court that has actually ruled on that, as called hyperbolic, and dismissal.

Robert Bryce 26:35
So it just want to make sure I understand what you’re saying. So the New York versus Exxon case was the only one that finally got to trial. And the judge just said, this is get out of here. This isn’t, you know, this isn’t valid, but that’s different from the AAP versus Connecticut case.

Phil Goldberg 26:49
Yeah. Because AP vers Connecticut, that was the back that the 2011 case went up to the Supreme Court. And then in last year, the New York City brought a lot had brought a lawsuit, one of these current lawsuits against the industry. And that’s what got dismissed both at the by the district court for you know, because it’s not these are valid public nuisance or Consumer Protection Act claims. And then the, the US Court of Appeals for the Second Circuit agreed and said, you know, went through the whole thing explaining why these aren’t viable lawsuits, because that had been filed in federal court. And so the federal courts had what we call jurisdiction over that lawsuit. All the others were filed in state court. And then we had this battle for the last six years of who has jurisdiction over and now they’re all going to state court. So the the goal is to find courts, unlike, you know, with the New York City lawsuit that won’t follow a P versus Connecticut, and we try to carve a different path.

Robert Bryce 27:45
And how is this different from it? Will the here’s some of the tort lawyers and the way they’re discussing it that this is they’re saying, Well, this is similar tobacco to the tobacco litigation, or to asbestos, what How’s it different?

Phil Goldberg 28:00
Well, I mean, I don’t really want to talk much about, you know, asbestos or tobacco. But what I can say is that, you know, we’re talking about a product, right now, that is essential to to modern life. And people may not like that, they may disagree with it, they may not like what the companies have said or done, but there’s no, but if tomorrow, all all of these energy sources were to go away, we, you know, it would just be unsustainable and unrealistic. So, as I mentioned, before, figuring out how we source and use energy in a way that doesn’t impact the climate is the top objective right now. And so we have to work through a process to get there. And these lawsuits don’t help. And in fact, they hurt. Because what it does, there’s a great article, The New York Times, about a year or so ago, explaining, you know, if if all of a sudden, all these companies that are being sued were, were to kind of reduce their, their focus on developing these products. You’ve got, you know, the energy companies around the world, you know, the, from China, to Saudi Arabia, to Russian energy companies that have said, we’re gonna start increasing our production to make up for anything that they that these other companies don’t do. And so they’re there. So it’s not going to go into have any impact on climate change, not gonna have any impact on the use of fossil fuels. It just becomes, American consumers have to pay more, because we’re saddling these companies that provide us with energy with more expenses. And while these other companies, you know, the government owned energy companies from around the world, they don’t have that same commitment to, to producing energy in ways that are environmentally friendly, so you’re gonna so if they do more, the environment gets worse, that we’re not going to reduce use of fossil fuels, just going to shift it again to there. So we’re not going to reduce the carbon emissions. We’re going to end up with American consumers paying more and being disadvantaged and our companies being disadvantaged, for no gain to the larger premise here. which is to deal to do something about climate change.

Robert Bryce 30:04
You were written about in The Guardian. Here’s the quote that Phil Goldberg is, quote, a hired gun for a front organization serving some of America’s most powerful oil firms. And it goes on part of a network of enablers working to preserve big oil’s power and reputation as it faces a barrage of litigation. Within two dozen city states, municipalities allegedly industry lied to Americans for decades, losses demand. Companies use some of their best profits to help pay for the human toll of the climate crisis, including a damaged bought by rising season in increasingly severe weather disasters. It’s the Guardian, right, but this is you’re being characterized as a hired gun, the network of enablers. But I think the part that to me is the dissonant part of this is what you just said that it’s not that people choose to smoke, right? Or they need to drive to school, right? They need to drive home they need to drive to work so that it’s the way the media seems to be portrayed is portraying this is that oh, somehow there’s an evil industry that’s supplying us with a product we can’t live without, but we’re still going to sue him for it. Am I making that too simple? Or am I miss reading something here? This is the part that seems to me, in addition to the issue of how do you fix blame for one specific Heatwave, or hurricane or whatever, but that there’s the disconnect between the product that we all have to have, and we talked about this before, and yet somehow suing the company for providing the product we have to have? And this isn’t a legal question. It’s more of a cultural question, right? But how did we get here? And I don’t know you’re a lawyer, and you want to speak on the law and the Supreme Court? The rest of it? How did we get to this cultural moment? Because that seems to me the be the broader story here. This is about a disconnect in the culture between something we have to have, and yet we’re going to demonize the industry for giving us something we can’t giving us something we can’t live without. How do you think about that?

Phil Goldberg 32:08
I mean, I think it’s, it’s politics. You know, it’s people there are, you know, taking on the industry is certainly popular with constituencies and some, you know, elected officials, and you have also, you know, those who would stand to make a lot of money if these lawsuits were to be successful. And so you when you have that confluence of politically driven ideology, with the, you know, potential to make money, then, you know, a lot of things can happen. And that’s one of the one of the reasons why I think these lawsuits are concerning more broadly, is because this playbook can be used against any industry that has products that have externalities, and it’s increasingly being used that way. And so, you know, if there’s a social or political issue out there, or an environmental concern that’s out there, they just want to go through the companies that were involved in that, as opposed to looking at the issue and saying, what do we really need to do here? And what’s the best way to try to drive the outcome? I think that’s beneficial to everybody. And that’s the concern. So it’s politics. You know, and that’s, you know, plain and simple. Politics and money.

Robert Bryce 33:19
So, you mentioned the Rockefeller Foundation, what are the other some of the, what are some of them the climate integrity project? Who are the other NGOs that are involved here? And have you? I know, you mentioned the report that tracks their money and all I didn’t look at that one. But what are the other ones that are the prominent ones here? And who else was at this 2012 meeting that you talked about?

Phil Goldberg 33:40
You know, a lot of this a lot of the they’re the two main ones, and I’m sure there are others that are involved in, you know, we probably name a few more in our report. You know, it’s less to me about the people who are involved and more about, you know, the broader policy and what they’re trying to achieve, and, frankly, why it’s wrong for us and why it’s wrong for consumers, why it’s wrong for manufacturers, and frankly, why it’s wrong policy. And I think that’s really what we’re focusing on the manufacturing countability project, because at the end of the day, that’s what’s most important is trying to figure out how we’re going to deal with climate change how we’re going to do it the right way, and how we’re going to do it in a way that is that is best for the American people. And, you know, when you sending American energy policy, EPA and and the Energy Department and Congress and the ministers don’t have to look at all these different factors. They don’t, they can’t just say okay, because of climate. We want to do this, but there’s affordability, there’s energy security, which in the past couple of years with you know, the invasion of Ukraine has become a lot more center stage. There’s a lot of factors that go into establishing American energy policy. And, and, yes, climate is one of them, and it’s an important one, but there are others that are also important. And what they want to do is take this out of the out of the hands of the people that deal with checks and balances that deal with all these other things. And they want to have judges say we’re going to make it work. going to we’re gonna set energy policy because we want to see more focus on climate. And that’s, you know, that’s not the right branch of government. That’s where we want to we’re concerned and saying, that’s not the way we do democracy in this country. That’s not, you know, that’s not what things are about and how we set policy is trying to go around the checks and balances, you should go through the checks and balances, because they end up with a better solutions, usually at the end.

Robert Bryce 35:23
Well, that seems to me that I’m paraphrasing slightly what you said, but they want to have judges set Energy policy of abbreviating What you said

Phil Goldberg 35:33
exactly right. They’re frustrated that their policies aren’t being adopted in Congress and in the federal agencies. And that’s true, regardless of who’s been in the White House or who’s been in, you know, who’s controlled Congress. They’re going back and saying, we’ve never been able to, to get their policies through. And so they’re going to the courts to try to do that. You know, if you go back and you look at the AP versus Connecticut case, it was the Obama administration, his solicitor general that explained what the problems are with these lawsuits. And the and I’ll read from their own brief saying that it’s impossible to consider the sort of focus and where geographically proximate effects that are raised in this kind of litigation, because there’s an unimaginably broad categories of both potential plaintiffs and potential defendants making the question of who does who to blame capacious. And so, you know, about ministration, oppose these lawsuits, because, you know, this is societal, why this is 150 years of emissions, this are our actors around the world. And it’s the world that needs to get together to make this to drive these policy solutions, not a state court judge in any of these states that are, you know, where these, these cases have been brought?

Robert Bryce 36:46
Well, I like that for unimaginably broad. I don’t know that I’ve heard that phrase before. But that was, like those two words together. Has the Biden administration tipped his hand on any of this? Are they willing to sit on the sidelines that I didn’t know that the Obama administration had weighed in on the other litigation, but any tea leaves reading or in reading any tea leaves regarding the Biden administration, what their Solicitor General might do on this wall? So

Phil Goldberg 37:10
their Solicitor General came in and said they didn’t think these cases should go to federal court? You know, we’re in the case where the with the Supreme Court decided not to weigh in, they’d asked this, the Biden Solicitor General to say, hey, what do you think? And they said, Oh, let them go to state court. So that was a that was a change from what the Trump administration had said, what the Obama administration if you kind of weed so

Robert Bryce 37:34
let me stop you. So I’ve characterized this administration. In fact, I just did in my latest substack is the most anti hydrocarbon administration in American history. And I’ll stand by that. I think that that’s true statement, that now the Biden administration in when in the AYP in the case that was decided by the Supreme Court in April, their Solicitor General said, oh, yeah, it’s so fine, go ignore a P versus Connecticut, this should be handled in the state courts. Right.

Phil Goldberg 38:02
That’s exactly right. And, you know, because they’re looking, there are certain doctrinal hurdles I was saying before, that have to the defendants would have to cross over and they went through and said, We don’t agree that they’ve met these hurdles. But I mean, politically, I think it’s right, that they, they were voicing some support for this litigation, which, frankly, is concerning, because, again, this is this is why we need a federal response. This is we need to have a uniform understanding. We’re talking about blaming for climate change and funding local infrastructure projects related to climate. This is not a liability issue for state courts do piecemeal, we need we need one federal and national solution. And frankly, you know, for those communities that do need money, you know, the Biden ministration, has made some money available, they’ve through the, you know, their various infrastructure programs, exactly for this purpose. So that’s where, you know, we think the better solution is then doing that through lawsuits.

Robert Bryce 39:00
So would the Biden administration Solicitor General then say, Oh, well, we’ll let this run its course in the state courts, because they didn’t think that they would get a favorable outcome in the Supreme Court has been given the makeup of the Supreme Court today. Is that? What how do you read that? From a political standpoint?

Phil Goldberg 39:21
I think that’s probably true. You know, and I think that they, you know, from a political perspective, and, you know, I don’t think I’m saying thing at a turn, I think that they wouldn’t mind seeing this play out in the media and play out in different sectors and, and see how things shake out at the end of the day. You know, there’s there’s from a there was a lot of, I think, pressure on the administration to just just stay back and let us let us take this, take this fight. And so I think that’s what they decide to do at the end of the day.

Robert Bryce 39:56
Well, there’s a word that begins with chicken that I’m not gonna use here, but it is a four letter modifier that comes after. Well, so then what’s the next step? Tell me where the Multnomah County litigation is? Where is it now it especially given the April decision for the Supreme Court then. So is it correct then that all these all these different lawsuits, these, a couple of dozen of them can now go forward with discovery and that that would be the next step step, or how to what happens next.

Phil Goldberg 40:29
So what happens next is, rather than I’m sure there’s going to be some procedural issues that come up, but by and large, the next major thing would be that the defendants would say, in each of these cases, the law doesn’t support what they’re what these lawsuits bring. So they’re being brought under Consumer Protection Act on their public nuisance, and you mentioned trespass or rica or whatever, you know, various theories that they’re saying, and, and the defendants will say, hey, these, these, the law doesn’t support these allegations. And I expect some, you know, some will win, some will lose. I mean, it’s kind of just, you know, I think a lot of state judges, they’re very wary of, of dismissing cases at the outset, because they also want to see how things progress. And so, you know, I think if they looked at it fairly, they would they would dismiss the lawsuit, because the law doesn’t support these lawsuits. But I wouldn’t, you know, I wouldn’t be truthful, if I said to you, I think we’re gonna win all of them. I think there’s some, you know, some will go each each way. And then,

Robert Bryce 41:27
but then next step, and given so given this ruling at the Supreme Court, then the next step is for the all these the oil and gas companies. And the coal companies, I guess, because Peabody is included here as well, that they’re gonna file most of the motions for dismissal of all of these cases, and then that will have to run through the that gamut of that, that process. And then the judges will decide, well, either they’re dismissed or they can go forward. And then there’s battle over discovery, there’s battle over depositions, battles over there

Phil Goldberg 41:53
in litigation, right. And then, you know, it could be several years before we see anything that kind of gets towards any kind of substantive determination of the litigation.

Robert Bryce 42:03
And that will have to and then any substantive determination, then you get some kind of ruling, then if it’s negative for the oil and gas sector, then that’s when you go to you appeal to the federal courts, because you then you have the argument, that it’s, I guess, is that it’s ripe then for determination in the federal courts, because we’re saying, Well, if the state court didn’t see this, right, so we’re taking it to the federal level is

Phil Goldberg 42:25
going to the state Supreme Court, or up the state appellate process where there’s mid level appellate courts, and state Supreme Court. And then once it’s the state Supreme Court, assuming there are federal issues, which there are, then they’ll petition the US Supreme Court to get involved in saying, you know, hey, you need to look at these because they’re misapplying federal law. And, and so that’s hopefully this, you know, that if we ever get to that point, the Supreme Court would weigh in at that point. Gotcha.

Robert Bryce 42:53
So we’re looking at legal fees here, that will be enormous. What do you charge per hour? Phil?

Phil Goldberg 42:58
Oh, my different clients, different things. So it’s all what’s your state? What’s

Robert Bryce 43:05
your standard rate?

Phil Goldberg 43:06
Honestly, I don’t even know. And then I’m not being coy. I really don’t know.

Robert Bryce 43:10
So you’re working on retainer then for the manufacturers Accountability Project, and I am Yes. Okay. So you’ve got your love. Your firm is under retainer then for this? Yes. Okay. So how big is it? I mean, what is this going to cost? I mean, if you just so there, there’s the potential for liability. Multnomah County alone is asking for $50 billion. And they they say I pulled the looked at the lawsuit. For the cost of studying and planning on a county wide scale for the renovations, replacements, retrofits and revised programs that were unreal that are reasonably necessary to reduce the ongoing harms caused by the defendants the implementation of which will it goes on and on weatherize the county prepare for safeguard against continued infliction of harms from the ACC anthropogenic climate change driven extreme weather events for which defendants are liable. So that’s 50 billion if the damages are awarded, what could the legal fees be here? Just if you think about what the because this is one of the issues that was as I understand when it’s germane here, because Entergy was owned the Indian Point nuclear plant in New York, and they faced years of litigation. And from what I’ve been told, they just got tired of paying all the lawyer bills and said this is too much. So I’m assuming you’re you’re you didn’t you? You smiled and you blushed a little bit. Okay, I get it. But you’re illegal. You’re billing for your time. If you’re a trial lawyer at your level, I’m assuming it’s, you know, hundreds of dollars per hour and close to $1,000 an hour. How much is will this litigation cost the oil and gas industry? How much is how much have you budgeted for the manufacturers Accountability Project to defend against all these lawsuits?

Phil Goldberg 44:45
Yeah, I mean, so we’re not we’re not defendants in the actual cases. And my firm, you know, the big energy companies don’t don’t use my firm to represent them. There’s different law firms involved. And so, you know, I don’t know what it cost to defend these kinds of losses. But you’re right, it’s got to be, you know, 10s of millions, if not more every year, given the given the magnitude of, you know, all these cases. Now, there’s certain economies of scale, because a lot of the same arguments are being made, because the what the, what the plaintiffs lawyers have done and a lot of these students is they basically follow the carbon copy lawsuits. So there’s gonna be, you know, economies of scale and kind of making the same arguments and filing them in the different, you know, the different cases, but it is a big waste of resources. You know, this is, you know, these kinds of resources are much better spent doing something more productive than what we’re seeing here.

Robert Bryce 45:38
So, I just want to understand that what you just said, so, Exxon, Chevron, Royal Dutch motiva, they’re all going to have their own lawyers that are going to be involved in this litigation in Multnomah County. So then, if you’re the Special Counsel for the manufacturers Accountability Project, then are you kind of the general manager for the litigation? I don’t know. What you’re what you’re telling me here is that you’ve got a whole cast of lawyers that are going to be responding in Multnomah County well, then how

Phil Goldberg 46:08
we don’t we don’t get involved in the in the specific cases will fall sometimes called amicus briefs, for the National Association manufacturers at any appellate courts explain kind of how we see the cases. But we’re not involved in managing the litigation or in any way, you know, dealing with the trials. That’s all, you know, all the companies have their own counsel and doing that we would our concern is, is talking to people like yourself, like others who are looking at this and saying, Is this good or bad, which would make of this? And that’s where I think we have, because we’re not in the cases, we have the ability to talk to people and say, you know, here’s, here’s how, you know, here’s why people should be concerned about these lawsuits. And so that’s kind of how you know how we’ve gotten involved. It’s not in fighting the day to day battles in the courts.

Robert Bryce 46:56
Oh, okay. All right. Well, I’m glad to make that distinction, because I didn’t understand you’re involved. You’re you’re monitoring the litigation, keeping tracking litigation, but you’re not necessarily filing briefs unless they’re amicus briefs into the into the court for or if you but you may file an amicus brief in the Multnomah County case, then am I is that right?

Phil Goldberg 47:15
If it got to the appellate level problem, that might be true.

Robert Bryce 47:18
Because usually, so you wouldn’t you wouldn’t have anything in the motion. Yet at this at the at this stage, you wouldn’t be filing any briefs? And in a motion for dismissal or anything at this level, you would be would come later. That’s right. I see.

Phil Goldberg 47:32
Okay, because typically, it’s the higher it’s the appellate courts that are looking at the pure legal issue. And that’s typically amicus briefs. Anybody has filed this when they’re really just look looking at the legal issue.

Robert Bryce 47:45
Right. So when you went through law school, I mean, the stakes here are just staggering, right? If Multnomah County is asking 50 billion, and you have two dozen that are lawsuits, and you just Well, I don’t know two dozen. That’s if you just say $10 billion, each rule that’s $240 billion. That’s the the stakes here just staggeringly large, not just in monetary terms, but also in terms of the potential will harm to the industry harm to the consumer and cost to the consumer. So when you’re going through law school at George Washington, did you ever think you’d be involved in this kind of litigation that is this large? Because this would be some of potentially some of the biggest tort actions in American history? I’m not an expert on law history. But that mean, just those are very large numbers we’re talking about here. Did you ever imagine you’d be involved in this kind of high stakes litigation?

Phil Goldberg 48:37
You know, I never did ever thought I’d work at a law firm. I was working on the hill, I was working for Congressman by name of Steve Rothman, and then a constant name of Ellen Tauscher going to law school at night, figuring that that was just a good way to advance myself, you know, on policy issues, and Congress, and then ultimately decided to go to a law firm and found a group that did this liability policy work at chinook and it’s I’ve been here 20 years, I just celebrated my 20th anniversary here at the firm. And so you know, that I never thought I’d be at a law firm, let alone working on these kinds of issues. And they’re, as you said, they’re very important. And I’m honored to be able to participate in this and be able to help explain the concerns that, you know, it’s one thing to throw was, you know, aspersions and, you know, try to demonize others. And it’s sometimes it’s hard to sit there and say, well, that’s not really the way it is and the way it ought to be. And so, you know, I’m glad I’m able to do that here. And I appreciate you giving me time to do that. And, you know, hopefully, your your listeners have, you know, a little more educated on on this litigation and what their concerns are about them than they would have been if they just, you know, heard from the other side about, you know, why they should want to blame others over these important issues

Robert Bryce 49:56
of the NGOs of the climate activist come after you

Phil Goldberg 49:59
well, I think you’ve already covered that.

Robert Bryce 50:03
Well, that was how the Guardian describes you. I mean, have there been other attacks on online or other places against you and what you’re doing?

Phil Goldberg 50:11
I look, I’m sure they’re not happy with what I’m doing. But you know, that’s not here, nor there. You know, I, you know, I think it’s important that we set the record straight. And we’re out there on these kinds of programs and happy to happy to be involved.

Robert Bryce 50:26
Okay, so again, my guest is Phil Goldberg, he is with the manufacturers Accountability Project, which is a an arm of the National Association of Manufacturers, which of course, is an NGO that represents the big manufacturers in the US can find out more about this litigation at MFG. Accountability. feel like you know, I think we covered a lot of this, I know, we can do take a much deeper dive on all of the different issues around product life. Well, the claims of negligence, fraud, deceit, trespass, public nuisance. But I think we’ve covered most of the main issues. Let me hit you with the last two questions I asked all my guests. I know you’re busy. You mentioned that your daughter had been driving across the country with her and listening to Taylor Swift songs. What are you reading? What books are on your shelf? Or do you have time for reading given all the other duties that you have? Well,

Phil Goldberg 51:19
actually wouldn’t surprise you. I did order Bill Gates his book on how to solve climate mitigate climate change, I find it litigation I thought that was interesting perspective on it. And a lot of it was about innovation and that sort of thing. But I will say my wife is the avid reader in the family, her, her my table is usually stocked with seven or eight books that she’s in some level in. And, you know, so I, I let her take that mantle. And I do as you can appreciate, do a lot of reading cases and all that during the day. And so sometimes I get home, I just want to turn on the news or turn on something funny and and just kind of relax. Fair enough.

Robert Bryce 51:55
You know, I did remember one question I have to ask you. So why aren’t any of these litigant litigate these plaintiffs suing the coal companies in China? Why are they suing these foreign companies? Because it’s not just American domiciled companies that are producing, you know, co2 and releasing it into the atmosphere. That was one that I meant to ask here. So is would there be a pathway in court? Where would they if they tried to hold any of the Chinese big Chinese coal companies or Coal India Limited, which is one of the world’s biggest coal producers? Or the Colombian coal producers or Indonesians you know, the I mean, there are a lot of other companies in the world who are producing hydrocarbons that are being burned, that could also in theory, anyway, be blamed for the weather. Why are they suing those other companies?

Phil Goldberg 52:42
I think, from a political perspective, I mean, they’re obviously targeting who they want to where they want to blame. I think there’s jurisdictional issues that would be involved in whether these other you know, these other entities, which are often state owned entities could even be brought into US courts. So there’s there’s probably some political some legal reasons why they haven’t done that. But you’d have to ask them that question. I mean, that’s their strategy, not mine.

Robert Bryce 53:12
Got it. My last question, Phil, what gives you hope?

Phil Goldberg 53:17
What gives me hope? Well, I mean, I’m insufferable baseball fan. And the NATs are my home team. It’s 2019 was awesome in terms of the World Series, and I watch a lot of the young players that they’ve got, and in the draft they just had with dealing crews from LSU. And that gives me hope you like to see them get back to playoff contention and hopefully a World Series in the next few years?

Robert Bryce 53:43
Well, I think I’ve asked that question a couple 100 times down in this podcast and I’m the the first one that has mentioned baseball is giving you hope, but that’s time I hope. Not opposed. I think that’s fine. I’m a basketball fan myself, but at a spurs fan and hoping wimpy is going to turn the Spurs. Right. But we will see.

Phil Goldberg 54:07
Hopefully, it gives you hope.

Robert Bryce 54:09
Well, I’ve answered that question before I did that that question was for you. So my guess has been Phil Goldberg. Phil, thanks for coming on the power hungry podcast. You can find out more about him at MF G accountability. Phil, thanks for your time. Interesting. Look at all this litigation. And I have to say I’m going to wish you luck on it. Because if these lawsuits succeed, and these damages are awarded, there’s chaos will ensue, I think and I’m firmly hoping that rationality and the law prevails here. So good luck with it.

Phil Goldberg 54:45
Thank you appreciate and thanks again for having me on.

Robert Bryce 54:47
And thanks for all you in power hungry podcast land out there. Give us a nice five star rating on whatever platform you’re listening to this on or you can leave comments of course on the YouTube channel. Until next time, For the next episode of the power hungry podcast see you


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