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.”
