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interviews

What State Takeover Looks Like

by Senator Scott Wiener
© Frank

interviews

Discourses of Delay

by Ben Franta
September 9, 2021

This interview with Benjamin Franta, a PhD student at Stanford, was conducted and condensed by franknews. Benjamin Franta has worked as a consultant on several of the legal cases mentioned in the following conversation. 

Benjamin | I study the history of fossil fuel politics, fossil fuel companies, and climate change. In particular, I study what fossil fuel companies knew about climate change, when they knew it, and what they told the public about climate change. I also just finished a law degree at Stanford law school, and I am very interested in how this historical research can be used to inform climate lawsuits in the United States and around the world. 

Really, I got into this area by chance. Before this, I got a Ph.D. in applied physics, which I did because I wanted to do something about climate change. I assumed that climate change was a scientific problem that required a technological solution. I assumed that inventing a better solar cell, for example, was the way to solve the problem. 

It wasn't until the end of my Ph.D. in applied physics, that I changed my mind about what the real impediment to solving climate change was. I began to see the political dimensions of the problem — the obstructionism of the fossil fuel industry. I began to think that if I really wanted to make an impact and contribute in a meaningful way, in a measurable way, then I needed to think more broadly and do work that was politically impactful. I decided to do another Ph.D., in part, because I didn't know what other route I could take if I wanted to study the fossil fuel industry and its activities. 

This was in 2016 or so. Around that time, the first legal investigations into the fossil fuel industry’s deception were beginning. I thought focusing the power of the law on the industry itself was really interesting. I mean, ten years ago, the focus on the industry was was relatively rare. Back in 2012, I was involved with the fossil fuel divestment movement at Harvard. The movement was just starting, and the focus on the fossil fuel industry itself, the producer, rather than the consumers, was fairly novel.

It broadened the issue from a technical issue that only a limited number of people have the training to engage with, to a moral issue that everyone can and should engage with.

The focus on the industry was very powerful, and the replicability of the tactic of divestment was also very powerful. That was part of my political awakening, and when I saw a similar legal angle being opened up, I thought, this is a very new and very powerful front.

So, I went to Stanford, and I began to study history. My advisor is a scholar of the tobacco industry and frequently testifies in tobacco trials, even today. He also understood the importance of legal action to expose the deceptions of a big powerful industry, hold it accountable, and, ultimately, change society. So it all came together, and now here we are. 

frank | Here we are. You take an interesting journey that, I think, that broadly traces a lot of peoples' growing understanding of the problem. How did the fossil fuel industry create a cognitive dissonance between the necessity to act and our belief in our own ability to act on it? What are the broad contours of that history?

Sure. By the 1960s, the industry was on notice about the ultimate eventuality of global warming from its products. By the early 1980s, the industry had a quite sophisticated understanding of how much global warming would occur over time and what many of the impacts would be.

Companies compared the issue of global warming to other issues like global famine, nuclear war; they knew their product was going to cause a disaster that was on par with other extremely serious existential threats to the world. 

This issue has never really been one of a lack of information, a lack of understanding, or a lack of knowledge around what ultimately needs to be done to solve the problem, and that surprised me. We have long known that we need to replace fossil fuels with other sources of energy. That was never really the bottleneck. Rather, the bottleneck is the various strategies to delay action that industry implemented. A lot of people have studied these strategies, which journalists and researchers call “discourses of delay.” This is a framework for thinking about the tactics that have induced delay and helped perpetuate the status quo.

What are the tactics? 

One is blaming the consumer. Framing this as a problem as the fault of the consumer for not making better consumer choices, is a great way to lock in the problem. Better consumer choices are good, but it is not sufficient. The focus on the consumer makes the industry invisible — suddenly the industry doesn’t have agency in this matter.  

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KXAS-TV (Television station : Fort Worth, Tex.). [News Clip: Carpools]videoJune 23, 1977, 10:00 p.m.; Fort Worth, Texas. (https://texashistory.unt.edu/ark:/67531/metadc1284185/m1/?q=carpoolaccessed September 3, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Special Collections.

This includes things like the “carbon footprint” as a paradigm, efforts to encourage carpooling, and efforts to encourage changing light bulbs. Oil companies put out advertising campaigns, starting at least in the 2000s, that framed environmental problems in this way. They marketed climate change as basically being the fault of consumers. The genius part of that is it, it appeals to our better nature. It appeals to people who want to help, who want to fight climate change, and offers them an inadequate set of actions.

Another big strategy is to frame climate change as too expensive to solve. I have a new paper coming that examines how the oil industry hired often the same group of economic consultants, from the early 1990s until today, who essentially told the public that it's too expensive to avoid climate change and that climate change itself won't be that bad. I believe there has been a manipulation of economics by the industry over the past few decades. 

The latest iteration of these strategies is positioning the industry as the solution to the problem. This emerged around the late 1990s and the early 2000s. In the late 1980s, climate emerged as this big political issue; there were going to be international treaties and domestic legislation to move away from fossil fuels. The industry litigated the science first, saying the science was uncertain and that it would be too expensive to move off of fossil fuels.

Then, in the late 1990s, there was a very noticeable flip in the rhetoric. The fossil fuel industry moved away from saying that climate science was unreliable, and moved towards saying, “of course climate change is real, and we’re the solution to the problem.” Instead of risking being pushed away from the table by challenging the science, industry wanted to ensure they had a seat at the table, effectively making it so that little could be done about climate change unless it had the approval of the fossil fuel industry. The industry promoted things like carbon capture and sequestration, and we see the lingering effects of that today. 

I like the frame of “predatory delay,” which is a phrase that Alex Steffen coined. The delay itself is the damage. All the incumbent has to do is slow down the change enough, and that is a victory. The industry does not have to prove climate science wrong, it just needs to slow down action. This is what we're fighting against. The battle now is one of speed. We have to replace fossil fuels, as quickly as possible. That is the goal. I think that we are finally looking in the right direction, we are finally looking at industry. We have the documents, we have mounting evidence, and I think that will help to disrupt their delay operations. 

What do you think is the proper way to think about personal efforts and calling for structural change? I feel like there might be a strain of personal fatalism that plays also into these delay strategies. 

I think the way to harmonize individual action with structural change is to put one's individual action towards something that can affect that change. Of course, structural change happens through the coordinated individual action of many, many people. And of course, there is nothing wrong with changing your light bulbs. Of course, being wasteful is bad. There is not a contradiction there. But, ultimately, the real question is, do your efforts have the capacity and the potential to scale up and become powerful enough to overcome a very powerful incumbent industry with ideological allies? 

This might be a question without a clear answer, but one of the things that continues to be confusing to me is, what are these corporations thinking? How do they reckon with their choices. 

Of course, it's kind of hard to know what they’re thinking. I mean, there's a banality of evil. On some level, people are just doing their jobs and their job is to help the company. There's a selection effect as well. Where if you feel ambivalent about what you're doing in your work you might not stay at the company for a long time, so for the people at the top of these corporations, the company is their world. 

Humans have a massive capacity for self-delusion and for rationalizing certain beliefs. Everybody does.

In the tobacco case, my advisor often talks about how the tobacco executives truly believed that tobacco did not cause cancer because they had convinced themselves of a definition of causation where that could be true — basically, an if and only if causation. If a lot of people who don't smoke have cancer and not everybody who smokes gets cancer, maybe we don't know if smoking causes cancer. That itself also kind of appeals to this quest for infinite knowledge. There is some uncertainty as to what really causes cancer fundamentally on a biochemical level, that is still a research question. So you can always appeal to the quest for knowledge, and essentially say that we don't have enough information to act yet, in order to promote uncertainty, and therefore delay. 

I also think the oil and gas industry in particular has an internal culture of believing it's the savior and the enabler of modern civilization. You can see in certain responses from the industry that they believe there is no modern world without them. Like, so what if we cause a little global warming, we gave you the entire world. 

modern1

modern2

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The cost of modernity. 

Yeah. So there's that too. There's probably a whole array of psychological realities and monetary incentives that will lead to this. That is why there's a broader conversation that sometimes creates fractures in the climate movement about how much do you challenge the structures of modern capitalism versus how much do you focus on particular corporations?

You know, how much does the problem lie in the fact that corporations generally act like sociopaths? 

Where do you think the focus should be? 

I think both approaches are valid. I think it's clear that the modern form of the corporation probably needs to be reformed for the sake of our future. This is not the first time that big industries have created massive catastrophes and crises for people. Look at the opioid crisis and that massive cover-up. This lying and deception and rationalization becomes completely normalized in these corporations. The opioid crisis was enabled by the highest-paid consultants in the world, those at McKinsey, for instance. These are not outliers.

To these people, success often means helping their client first and foremost, even when the broader societal result is to create or perpetuate a catastrophe. It's a perverted morality that needs to be addressed. 

I also think it is true that what we do in the next 10 years in regards to climate change is going to affect the earth for thousands of years. We have to move really quickly. We should try to harmonize these goals so that they allow us to address the problem of the fossil fuel industry within the decade in a conclusive way. If we can accomplish that, that in itself will be an example and evidence of the fact that we need to do something about the bigger and broader problem of how global capitalism is structured. 

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KXAS-TV (Television station : Fort Worth, Tex.). [News Clip: Daisy Chains]videoJune 15, 1979, 10:00 p.m.; Fort Worth, Texas. (https://texashistory.unt.edu/ark:/67531/metadc1083929/m1/?q=oil%20and%20gas%20industryaccessed September 3, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Special Collections.

Moving to built environments – how do you think propaganda and the cognitive dissonance efforts that have come down from the corporations have gone on to affect the infrastructure of the world we are living in now? Should adaptation be prioritized on par with mitigation? 

That's a good, and a big, question. I mean, clearly, the industry has influenced our built environment. Look at the dependence on cars in the United States, particularly in certain parts of the United States, like California. These are big infrastructural decisions that have had effects for many decades — which is part of industry strategy.

Infrastructure locks in the need for the fossil fuel industry.

Pipelines and distribution infrastructure lock in the need for natural gas, for example, because once you put it in there, it is costly not to use it. 

In terms of adaptation, I mean, I don't have a super good answer to this. One way to think about this is the fact that a lot of places are not going to be protected. How do we value these property assets? How do we think about how expensive it is to protect these assets and whether it is even possible to do so? How much of the real estate market in the United States is massively misvalued because of climate change? What the right thing to do to correct that is an open question. 

Horrifying. 

Right. Is it unethical to correct that misvaluation because a lot of people will lose their wealth? And I'm not talking about only wealthy people, I'm talking about the middle class and poor people too. Or is it more unethical to pretend like nothing is wrong, so that when a market correction finally does happen, it may be even more devastating and disruptive? I don't know. 

I think lawsuits are going to inform this question, certainly in the United States. A lot of the plaintiffs for the lawsuits are municipal entities or states who want to build a seawall, for example, and they want the fossil fuel industry to pay for part of it. Just by bringing the suit, you have to actually figure out the concrete numbers of the damage due to climate change. 

Rather than the neoclassical economic paradigm, which has spoken in terms like, “climate change costs 0.5% of GDP or 1% of GDP,” we are going to have conversations more like, “we need this seawall, we need it now, and it is going to cost us $500 million.”

The cost of climate change is going to be made very apparent.

Have there been cases like this hypothetical that have attempted to make fossil fuel companies pay for the cost of adaptation? 

Yes, there's a whole group of cases in the United States, and the collection is expanding all the time. I think it is above 20 now. 

Has there been any resolution in any of those cases?

Not for most. A few of them early on were dismissed for legal reasons, but more recently they have been more successful. They have overcome many of the industry's motions to dismiss, and the next phase might be what is called the discovery phase. This is before the trial, where you ask the other side to give you particular documents and information. I think that that will be big. 

Those cases have been working their way through the court system for the past four to five years. And they've mostly been wrangling over jurisdiction. That sounds technical and boring because it is just determining where the cases should be heard. But, in large part, that determines the fate of the cases. In certain jurisdictions, it's easier to get the case dismissed.

Which jurisdictions are easier than others? Is this a matter of specific states? 

It is largely a battle over state court or federal court. The plaintiffs have better chances in the state courts because if the cases are in federal court, then they're more likely to be dismissed. That is partly because the Environmental Protection Agency technically, although not effectively, regulates CO2. Therefore, there is a federal body that is technically dealing with climate change. That makes it easier to dismiss the cases from a federal court — so that federal bodies don't step on each other's toes. Of course, this reasoning for dismissal doesn’t quite make sense, because these climate cases don’t seek to regulate CO2. Instead, they’re trying to get compensation for damages caused by corporate malfeasance, which is a classic function of the court system. I think more judges are recognizing that over time.

For the last few years, the plaintiffs have been successful in keeping the lawsuits in state courts where they are more likely to survive and go to discovery and potential trial. We obviously don’t know what will happen with these cases. But, it is a massive controversy with a huge amount of damages and a huge amount of evidence of corporate malfeasance.

It is on par with, and potentially much larger than, the tobacco industry litigation, and, more recently, the opioid industry litigation, which recently resulted in a big settlement. 

I think it's only a matter of time before these cases succeed in some form, either by a judgment or a big settlement of some kind. I am enthusiastic about the prospects of these suits to make change. Their truth-telling capacity is also huge. You get this information out into the public through discovery. I think this is all hugely, hugely important. 

And who are the plaintiffs? 

The plaintiffs in the US are often cities or counties or states. 

Got it. 

And that was a very important, legal, strategic insight. For a long time individuals brought climate cases, but it was hard to show that you were impacted by climate change more than anybody else. The court would ask, “Well, why should you bring this case? You're just a random individual.” If you have a city bringing a case, you can say, “Actually climate change is causing this specific amount of damage to us.”  

Does a case like PG&E being held responsible for fires fit into the framework? Is there a world where PG&E starts shifting the blame on fossil fuel companies?

That's more speculative, but it's possible. You could have corporations versus corporations. You can think about the insurance industry, or, like you said, PG&E. PG&E might be able to turn around and place part of the blame on the fossil fuel industry for these fires. 

What happens if these cases continue to go in favor of the plaintiffs? What happens to the fossil fuel companies? Is this the way they are stripped of power?

I think the short answer is yes.

Once you see that the fossil fuel companies are potentially liable for climate damages, that is going to change the game for investors, that is going to change the game for the fossil fuel companies themselves. I think it would change the game in its entirety.

The damages in a single case might only be hundreds of millions of dollars. Of course is not a lot of money compared to how much the fossil fuel companies invest in their own operations every year — they might invest $10 or $20 billion per year per company. But, the fact that it's shown that the companies are liable for this is powerful. And this is just one piece, this is just the U.S. There are other legal contexts and efforts occurring around the world as well. 

The US has a legal context where suits are often about money, and money damages are often the remedy. But in other countries around the world, the legal context is different and there have been some major successes. For example, there was recently a case against Royal Dutch Shell in the Netherlands, where The Hague District Court ruled that Royal Dutch Shell, based on Dutch law about the duty of care that Royal Dutch Shell owes Dutch citizens, and further based on international human rights principles, has to do everything it can to align its business with the Paris Agreement. That means that Royal Dutch Shell has to reduce the greenhouse gas emissions from its products by about half over the next decade. Essentially, that would require a transformation of the company. It can no longer be a fossil fuel company as it is today. That is incredible. You have a court ordering a big multinational corporation to stop doing business as it's doing it now. Assuming this judgment stands, the court is going to watch the company, potentially for decades, to ensure it complies. There is a huge scope for change through litigation, and there are numerous legal systems that can force these companies to change. 

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 US National Archives. Secretary Ken Salazar meeting with oil and natural gas industry representatives concerning energy resource development in the Permian Basin.