News Updated

Amy Coney Barrett Should Recuse Herself from Big Oil’s Supreme Court Case

January 19th, the day before Joe Biden’s Inauguration, is one of those moments when past, present, and future will collide, this time in the halls of the Supreme Court. The Justices will hear a case (BP P.L.C. v. Mayor and City Council of Baltimore), and the most interesting question is: How many Justices will there be? Because, as new research makes clear, Amy Coney Barrett, the junior member of that august bench, should recuse herself.

The case before the Supreme Court hinges on a narrow procedural question, but the underlying lawsuit is one of almost two dozen brought by cities and states that want the oil companies to compensate them for the damages—the rising seas and the gathering winds—caused by the fossil-fuel industry’s products. They contend, and the record leaves little doubt, that the industry knew for decades that it was triggering dangerous climate change. These were the biggest lies that companies have ever told: if Philip Morris killed us one smoker at a time, BP and ExxonMobil and the rest are taking out the entire planet, as the new record that the world set for billion-dollar “natural” disasters in 2020 makes clear. That list of duplicitous companies includes Shell, which is where Barrett comes in: her father, Michael, was an attorney for Shell for almost three decades. During her Senate-confirmation hearings, Barrett provided a recusal list that she’d used during her years as an appeals-court judge—it included four Shell subsidiaries, but not Shell Offshore, Inc., even though her father represented that Shell entity in court and administrative forums for at least thirteen years. He also worked for the American Petroleum Institute for two decades, chairing its subcommittee on exploration and production law. And those two roles could be crucial to the case before the Supreme Court: as Lee Wasserman, the director of the Rockefeller Family Fund, which has played a key role in the fight to hold oil companies responsible, points out, Barrett père could be called for a deposition. “Justice Barrett’s father potentially has direct knowledge of and operational involvement in how Shell managed climate threats. He also faces reputational risk from his association with colleagues engaged in decades of corporate deception.”

For instance, in 1988—the year that the NASA scientist James Hansen made the greenhouse effect a public issue—Royal Dutch Shell produced a confidential internal memo after five years of internal reviews. The memo, which was uncovered in 2018 by the Dutch journalist Jelmer Mommers, notes that climate impacts could include “significant changes in sea level, ocean currents, precipitation patterns, regional temperature and weather.” It observes that changes would impact “the human environment, future living standards and food supplies, and could have major social, economic and political consequences.” These environmental and socioeconomic changes might be the “greatest in recorded history.” The memo includes this jarring observation: “By the time the global warming becomes detectable it could be too late to take effective countermeasures to reduce the effects or even to stabilize the situation.” The document also calculated how much Shell was on the hook for in all this; it concluded that the company could be tied to four per cent of all the carbon dioxide that humans, as of 1984, had spewed into the atmosphere. And Shell’s executives took the warning seriously—among other things, they quickly redesigned a natural-gas platform to raise its height and protect against sea-level rise and intensifying storms. As Wasserman says, “There is almost no chance that a person as senior as Mr. Coney, who worked principally in the ‘offshore OCS [Outer Continental Shelf] exploration and production area,’ would have been unaware of the issue.” (Late Tuesday afternoon, a coalition of environmental groups, including, where I am the senior adviser emeritus, called on Justice Barrett to recuse herself.)

Shell, instead of admitting the damage it had caused, joined with other fossil-fuel companies to form the Global Climate Coalition, which ran a huge (and hugely successful) decade-long campaign to confuse the public. There’s no way to take that back now—it’s water under (and, increasingly, over) the bridge. But there can still be justice, in this case for the taxpayers of cities like Baltimore, who, despite not being at fault for the damage wrought by fossil-fuel companies, have to pay for the protection that their homes now require. That justice depends on taking the past seriously, which isn’t easy for any of us. It will be interesting to see how Justice Barrett responds.

Passing the Mic

Robin Broad is a professor at American University; she has served as an international economist in the Treasury Department and at the Carnegie Endowment for International Peace. With her husband, John Cavanagh, she helped build the network of international allies that spearheaded the global fight against gold mining in El Salvador, a fight premised on the argument that the mines would wreck the country’s rivers. They chronicle the decade-long battle in their new book, “The Water Defenders: How Ordinary People Saved a Country from Corporate Greed.” (Our conversation has been slightly edited for length and clarity.)

This has been called a David and Goliath story. Can you explain in a few words what happened in El Salvador and why it was so dramatic?

In fights against corporate Goliaths like ExxonMobil and Amazon, the Davids almost never win. In El Salvador, brave individuals from poor, remote communities beat the odds. To save their precious rivers, they stood up to powerful mining corporations. And, despite the brutal assassination of four of their comrades, they kept fighting for thirteen years and ultimately prevailed. How did they do it? They won over public opinion by defining their struggle as pro-water rather than anti-mining. Their slogan: “Water Is Life.” With creative audacity, they cultivated unlikely allies, including right-wing ministers and legislators and conservative archbishops. Since their corporate foes were global, they forged their own international alliances. Labor, environmental, and faith activists in the United States, the Philippines, Australia, Canada, and other countries put pressure on governments, corporations, and international institutions in solidarity with the Salvadoran water defenders.

In the end, they defeated a corporate lawsuit in a Washington, D.C., tribunal—and they persuaded their national legislature to make El Salvador the first country in the world to ban mining.

Water defenders have been popping up around the world, Standing Rock being a prime example. Are people learning from one another as these fights multiply?

Now you are asking me to jump ahead to some of the surprises in the book. Trying not to reveal too much, here is more good news: a Philippine governor became a secret weapon in the Salvadoran win. He travelled halfway around the globe to El Salvador to offer his firsthand testimony on the dangers of large-scale mining. He then returned home with tales of the Salvadoran victory, helped spread the understanding that water is life, and joined Philippine water defenders to block the continued operation of a global mining corporation there.

So just as the Standing Rock Sioux are celebrated around the United States and have shared lessons with indigenous communities from Arizona to Minnesota, El Salvador’s water defenders have been invited by communities—from Haiti and Peru to Canada and Australia—to share the story of their unexpected victories. And movements have learned from each other to push governments to stop or restrict toxic mining in Costa Rica, Panama, Colombia, Ecuador, Argentina, and elsewhere.

We’ve watched in the past few months as unprecedented hurricanes have slammed into Central America. Do you foresee climate refugees headed north, and how should Americans think about them if they come?

Yes. Even before the devastating hurricanes, years of climate-change-induced drought in Central America shrivelled coffee, bean, and corn crops, creating countless climate refugees. Their ranks have been further fuelled by decades of socially and environmentally destructive economic policies imposed by U.S.-backed governments across the region.

That said, it is crucial to understand that most people we met in rural Central America love their land and their cultures and would prefer to stay home, if they have the opportunity to live safe and dignified lives there. They want to farm the lands they have farmed for generations and fish the rivers they have fished for generations. That is why Salvadorans risked their lives to save their rivers from Big Gold rather than head north.

And that is why, as the Biden Administration makes climate change a top priority, it should simultaneously halt military assistance to the Honduran dictatorship and stop so-called foreign aid that favors energy-intensive mega-projects. Our government should instead offer assistance that supports small farmers and sustainable, local livelihoods.

Climate School

While we’re on the theme of taking on Philistines, Geoff Dembicki, at the Canadian publication the Tyee, gives the best account I’ve read of how upstart Brooklyn community groups managed to fight off plans for luxury development and preserve the South Brooklyn waterfront as an industrial space “where people could earn decent salaries building the wind turbines, solar panels and low-carbon technology necessary for a Green New Deal.” Dembicki quotes Elizabeth Yeampierre, one of the heroes of the fight: “We would say it isn’t David and Goliath. It was David and five Goliaths.”

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