Minnesota's 'Big Oil' lawsuit becomes an issue in attorney general's race

A lawsuit by Democratic Minnesota Attorney General Keith Ellison to hold large fossil fuel firms responsible for deceiving the public on climate change has become a campaign issue as Ellison defends his seat this year.

Jim Schultz, his newly minted Republican challenger, has made an issue of the suit on the campaign trail. In an interview, he described it as "frivolous" and said the Attorney General's Office should focus on violent crime by hiring more prosecutors in that area.

"It has zero chance at succeeding," Schultz said of the fossil fuel lawsuit. "It's fundamentally motivated by headlines and pleasing one side of the political aisle."

Minnesota's isn't the only climate change lawsuit in the court system right now — there are more than 20 from cities, counties and states across the country. Very few have been dismissed.

"This lawsuit is in the long and successful tradition of Minnesota attorneys general standing up to protect Minnesotans from corporate fraud and deception by Big Tobacco, Big Pharma, and now Big Oil," Ellison wrote in an e-mailed statement. "This is what Minnesotans expect from their attorney general. It's the right fight to be having."

The litigation argues that the American Petroleum Institute, ExxonMobil and Koch Industries misled Minnesota consumers for years about the consequences of burning oil and gas. It argues that the state "has already experienced billions of dollars of economic harm due to climate change" and without action "will continue to suffer billions of dollars of damage through midcentury."

There is broad scientific agreement that burning fossil fuels has overheated the planet by belching carbon dioxide and other gases into the atmosphere, supercharging disasters like floods, droughts and wildfires.

In the suit, Minnesota asks for the defendants to publish any research they possess relating to climate change and to fund a public education campaign about climate change. It also asks for unspecified restitution and damages.

It's still not clear how judges and juries would view this legal maneuver to hold the fossil fuel industry accountable, or if the questions will even get their day in court.

A wave of litigation

Minnesota's lawsuit and similar ones elsewhere hinge on the claim that fossil fuel companies duped consumers even as they knew that burning oil and gas would make the planet hotter, said Korey Silverman-Roati, a fellow with the Sabin Canter for Climate Change Law at Columbia University. Michael Burger, the executive director of the center, also works with Sher Edling, the law firm handling Minnesota's case and others.

The cases are largely stuck on the same question: whether they should be heard in state or federal court. Almost all were originally filed in state court, and the defendants have tried to move them to federal venues.

"This wave of litigation started in 2017, so we're coming up on the fifth year of these cases, and we're still sort of mired in this," Silverman-Roati said.

Oil companies and other defendants argue that as a national or international issue, climate change should be heard in a federal courtroom.

But if they are heard there, they face the hurdle of a 2011 Supreme Court case that makes it harder to claim fossil fuel emissions are a nuisance under federal common law. The case, American Electric Power Co. v. Connecticut, determined that the Clean Air Act, not lawsuits, are the way to deal with some of these claims, Silverman-Roati said.

So if the cases do stay in federal court, and the court decides they're being pursued under common law, they're in danger of being dismissed.

One case in New York that originated in federal court has since been dismissed. But in cases that were first filed at the state level, federal courts and appeals courts have uniformly been sending them back there for consideration, Silverman-Roati said.

Consumers and criminals

Minnesota's suit was filed in 2020. American Petroleum Institute is an industry group. One of the two oil companies sued, Koch Industries, runs the Pine Bend Oil Refinery in Rosemount though a subsidiary, Flint Hills Resources, which is also a named defendant.

The lawsuit cites internal corporate research, particularly from ExxonMobil, conducted as far back as the late 1950s that showed burning fossil fuels was increasing planet-warming gases in the atmosphere. It also includes examples of internal strategy documents from the late 1980s onward that call for injecting uncertainty into scientific discussions of global warming.

The litigation is in limbo at the Eighth Circuit Court of Appeals, as Minnesota argues it should be sent back to state court. Oral arguments were held in January. John Stiles, a spokesman for the Attorney General's Office, said in an email that an appeals decision isn't expected before this autumn, at the soonest.

In an email, an ExxonMobil spokesman wrote that the suit was "a waste of millions of dollars of taxpayer money" and doesn't reduce the risks of climate change. An API spokeswoman wrote that in the past two decades, the industry "has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions." A spokesman for Flint Hills wrote that the firm strongly disputes "any allegation that our company has ever been deceptive or dishonest with respect to the issue of the changing climate."

Including Koch Industries sets Minnesota's suit apart from others across the country. Pine Bend produces about half of the gasoline sold in Minnesota, according to research cited in the suit. It employs more than 1,000 people, according to the refinery's website.

Schultz argued the claims in the suit would fall apart. Asked whether the office should have a role in addressing climate change, Schultz said, "The Attorney General's Office is not supposed to be engaging in far left political activism, or activism of any kind."

He added, "I will not engage in things like this that are fundamentally about business harassment."

Ellison, however, argued in an e-mail that "ExxonMobil, Koch Industries, and the American Petroleum Institute knew for decades their industries were a major source of climate change and were causing Minnesotans long-term harm."