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On offshore wind wins, China’s ‘strong energy nation,’ and Japan’s deep-sea mining
What to watch for when the agency releases its final decision on the greenhouse gas endangerment finding.
Fossil fuel companies colluded to stifle competition from clean energy, the state argues.
A new kind of climate lawsuit just dropped.
Last week the state of Michigan joined the parade of governments at all levels suing fossil fuel companies for climate change-related damages. But it’s testing a decidedly different strategy: Rather than allege that Big Oil deceived the public about the dangers of its products, Michigan is bringing an antitrust case, arguing that the industry worked as a cartel to stifle competition from non-fossil fuel resources.
Starting in the 1980s, the complaint says, ExxonMobil, Chevron, Shell, BP, and their trade association, the American Petroleum Institute, conspired “to delay the transition from fossil fuels to renewable energy” and “unlawfully colluded to reduce innovation” in Michigan’s transportation and energy markets. This, it alleges, is a key driver of Michigan’s (and the country’s) present-day struggles with energy affordability. If the companies had not suppressed renewable energy and electric vehicles, the argument goes, these technologies would have become competitive sooner and resulted in lower transportation and energy costs.
The framing may enable Michigan to sidestep some of the challenges other climate lawsuits have faced. Ten states have attempted to hold Big Oil accountable for climate impacts, mostly by arguing that the industry concealed the harms their products would cause. One suit filed by the City of New York has been dismissed, and many others have been delayed due to arguments over whether the proceedings belong in state or federal court, and haven’t yet gotten to the substance of the claims. Michigan’s tactic “maybe speeds up getting to the merits of the case,” Margaret Barry, a climate litigation fellow at Columbia University’s Sabin Center for Climate Change Law, told me, “because those jurisdictional issues aren’t going to be part of the court’s review.”
The fossil fuel industry’s primary defense in these suits has been that cities and states cannot fault oil companies for greenhouse gas emissions because regulating those emissions is the job of the federal government, per the Clean Air Act. Making the case about competition may “avoid arguments about whether this lawsuit is really about regulation,” Rachel Rothschild, an assistant professor of law at the University of Michigan, told me.
The biggest hurdle Michigan will face is proving the existence of a coordinated plot. Geoffrey Kozen, a partner at the law firm Robins Kaplan who works on antitrust cases, told me that companies in these kinds of suits tend to argue that they were simply reacting independently to the same market pressures and responding as any rational market actor would.
There are two main ways for a plaintiff to overcome that kind of argument, Kozen explained. In rare cases, there is a smoking gun — a memo that all of the parties signed saying they were going to act together, for example. More often, attorneys attempt to demonstrate a combination of “parallel conduct,” i.e., showing that all of the parties did the same thing, and “plus factors,” or layers of evidence that make it more likely that there was some kind of underlying agreement.
According to Michigan’s lawsuit, the collusion story in this case goes like this. In 1979, the American Petroleum Institute started a group called the CO2 and Climate Task Force. By that time, Exxon had come to understand that fossil fuel consumption was warming the planet and would cause devastation costing trillions of dollars. The company’s scientists had concluded that cleaner alternatives to fossil fuels would have to make up an increasing amount of the world’s energy if such effects were to be avoided.
“A self-interested and law-abiding rational firm would have used this insight to innovate and compete in the energy market by offering superior and cheaper energy products to consumers,” the complaint says. Michigan alleges that instead, Exxon shared its findings with the other companies in the task force and conspired with them to suppress clean alternatives to fossil fuels. They worked together to “synchronize assessments of climate risks, monitor each other’s scientific and industry outlooks, align their responses to competitive threats, and coordinate their efforts to suppress technologies likely to displace gasoline or other fossil fuels through collusion rather than competition,” according to the complaint.
Michigan’s lawyers point to evidence showing that the named companies shut down internal research programs, withheld products from the market, and used their control of patents to stifle progress away from fossil fuels. The companies were all early leaders in developing clean technologies — with innovations in rechargeable batteries, hybrid cars, and solar panels — but began to sabotage or abandon those efforts after the formation of the task force, the lawsuit alleges.
The case will likely turn on whether the judge finds it credible that these actions would have been against the companies’ self-interest had they not known their peers would be doing the same thing, Kozen told me.
“The actions differ between defendants. They are over a wide range of time periods. And so the question is, is that pursuant to an actual agreement? Or is it pursuant to a bunch of oil executives who are all thinking in similar ways?” he said. “I think that’s going to be the number one point where success or failure is probably going to tip.”
Another challenge for Michigan will be to prove what the world would have looked like had this collusion not taken place. In the parlance of antitrust, this is known as the “but-for world.” Without the Big Oil conspiracy, the lawsuit says, electric vehicles would be “a common sight in every neighborhood,” there would be ubiquitous “reliable and fast chargers,” and renewable energy would be “supplied at scale.” It argues that economic models show that Michigan’s energy prices would also have been significantly lower. While such arguments are common in antitrust cases, it’s a lot more difficult to quantify the effects of stifled innovation than something more straightforward like price fixing.
The companies, of course, reject Michigan’s narrative. A spokeswoman for Exxon told the New York Times it was “yet another legally incoherent effort to regulate by lawsuit.”
If the state can gather enough plausible evidence of harm, however, it may be able to get past the companies’ inevitable motion to dismiss the case and on to discovery. While the case is built on heaps of internal emails and leaked memos that have been made public over the years through congressional investigations, who knows how much of the story has yet to be revealed.
“It’s, in my experience, almost impossible, if someone is actually a member of a cartel, to hide all the evidence,” said Kozen. “Whatever it is, it always comes out.”
On Vineyard Wind’s win, Hydro-Quebec, and the EU-India trade deal
Current conditions: Temperatures as low as 30 degrees Fahrenheit below average are expected to persist for at least another week throughout the Northeast, including in New York City • Midsummer heat is driving temperatures up near 100 degrees in Paraguay • Antarctica is facing intense katabatic winds that pull cold air from high altitudes to lower ones.
President Donald Trump, no fan of the Paris Agreement.Tom Brenner/Getty Images
The United States has, once again, exited the Paris Agreement, the first global carbon-cutting pact to include the world’s two top emitters. President Donald Trump initiated the withdrawal on his first day back in office last year — unlike the last time Trump quit the Paris accords, after a prolonged will-he-won’t-he game in 2017. That process took three years to complete, allowing newly installed President Joe Biden to rejoin in 2021 after just a brief lapse. This time, the process took only a year to wrap up, meaning the U.S. will remain outside the pact for years at least. “Trump is making unilateral decisions to remove the United States from any meaningful global climate action,” Katie Harris, the vice president of federal affairs at the union-affiliated BlueGreen Alliance, said in a statement. “His personal vendetta against clean energy and climate action will hurt workers and our environment.” Now, as Heatmap’s Katie Brigham wrote last year, at “all Paris-related meetings (which comprise much of the conference), the U.S. would have to attend as an ‘observer’ with no decision-making power, the same category as lobbyists.”
America has not yet completed its withdrawal from the United Nations Framework Convention on Climate Change, the overarching group through which the Paris Agreement was negotiated, which Trump initiated this month. That won’t be final until next year. That Trump is even planning to quit the body shows how much more aggressive the administration’s approach to climate policy is this time around. Trump remained within the UNFCCC during his first term, preferring to stay engaged in negotiations even after quitting the Paris Agreement.
Just weeks after a federal judge struck down the Trump administration’s stop work order on the Revolution Wind project off Rhode Island’s shores, another federal judge has overturned the order halting construction on the Vineyard Wind project off Massachusetts. That, as Heatmap’s Emily Pontecorvo wrote last night, “makes four offshore wind farms that have now won preliminary injunctions against Trump’s freeze on the industry.” Besides Revolution Wind, Dominion Energy’s Coastal Virginia offshore wind project and Equinor’s Empire Wind plant off Long Island have each prevailed in their challenges to the administration’s blanket order to abandon construction on dubious national security grounds.
Meanwhile, the White House is potentially starving another major infrastructure project of funding. The Gateway rail project to build a new tunnel under the Hudson River between New Jersey and New York City could run out of money and halt construction by the end of next week, the project manager warned Tuesday. Washington had promised billions to get the project done, but the money stopped flowing in October during the government shutdown. Officials at the Department of Transportation said the funding would remain suspended until, as The New York Times reported, the project’s contracts could be reviewed for compliance with new rules about businesses owned by women and minorities.
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A new transmission line connecting New England’s power-starved and gas-addicted grid to Quebec’s carbon-free hydroelectric system just came online this month. But electricity abruptly stopped flowing onto the New England Clean Energy Connect as the Canadian province’s state-owned utility, Hydro-Quebec, withheld power to meet skyrocketing demand at home amid the Arctic chill. Power plant owners in New England and New York, where Hydro-Quebec is building another line down the Hudson River to connect to New York City, complained that deals with the utility focused on maintaining supplies during the summer, when air conditioning traditionally surges power to peak demand. Hydro-Quebec restored power to the line on Monday.
The storm represented a force majeure event. If it hadn’t, the utility would have needed to pay penalties. But the incident is sure to fuel more criticism from power plant owners, most of which are fossil fueled, who oppose increased competition from the Quebecois. “I hate to say it, but a lot of the issues and concerns that we have been talking about for years have played out this weekend,” Dan Dolan — who leads the New England Power Generators Association, a trade group representing power plant owners — told E&E News. “This is a very expensive contract for a product that predominantly comes in non-stressed periods in the winter,” he said.
Europe has signed what the European Commission president Urusula von der Leyen called “the mother of all deals” with India, “a free trade zone of 2 billion people.” As part of the deal, the world’s second-largest market and the most populous nation plan to ramp up exports of steel, plastics, chemicals, and pharmaceuticals. But don’t expect Brussels to give New Delhi a break on its growing share of the global emissions. The EU’s carbon border adjustment mechanism — the first major tariff in the world based on the carbon intensity of imports — just took effect this month, and will remain intact for Indian goods, Reuters reported.
The Department of the Interior has ordered staff at the National Park Service to remove or edit signs and other informational materials in at least 17 parks out West to scrub mentions of climate change or hardship inflicted by settlers on Native Americans. The effort comes as part of what The Washington Post called a renewed push to implement Trump’s executive order on “restoring truth and sanity to American history.” Park staff have interpreted those orders, the newspaper reported, to mean eliminating any reference to historic racism, sexism, LGBTQ rights, and climate change. Just last week, officials removed an exhibit at Independence National Historical Park on George Washington’s ownership of slaves.
Tesla is going trucking. The electric automaker inked a deal Tuesday with Pilot Travel Centers, the nation’s largest operator of highway pit stops, to install Tesla’s Semi Chargers for heavy-duty electric vehicle charging. The stations are set to be built at select Pilot locations along Interstate 5, Interstate 10, and several other major corridors where heavy-duty charging is highest. The first sites are scheduled to open this summer.
