Environmental groups are taking inspiration from the legal fight against tobacco to fire warning shots at major energy companies over their alleged role in funding climate change denial and blocking climate-friendly legislation.
Greenpeace and the World Wildlife Fund have sent letters to dozens of Canadian and international energy companies asking them about their guidelines for public communication and lobbying practices on climate change. The groups have also asked if corporate officers are insured against the possible spread of misinformation about the impact of greenhouse gases.
It's the opening salvo in an attempt to hold the industry accountable for what the environmental groups say is its role in slowing efforts to fight global warming.
"We're laying the groundwork for court cases to come," Keith Stewart of Greenpeace Canada said Wednesday. "In many ways, the oil industry is right now where the tobacco industry was back in the 1980s."
Martin Olszynski of the University of Calgary law school said legal scholars take seriously a link between the legal actions that extracted big payouts from tobacco companies and the position of the energy industry over climate change.
"It's a live issue," said Olszynski, who, with his colleague Sharon Mascher, hopes to publish research on the topic later this summer. "It definitely has some potential and it can't be discounted."
The letter has gone out to 32 companies.
The list includes both oil and gas majors as well as other large greenhouse gas emitters such as cement producers and coal companies.
As well as energy multinationals with large Canadian operations such as ConocoPhillips and Total, it has gone to five Canadian companies: Suncor (TSX:SU), Talisman Energy (TSX:TLM), Husky Energy (TSX:HSE), EnCana (TSX:ECA) and Canadian Natural Resources (TSX:CNQ).
The letter asks: "Has your company implemented a clear and specific policy to make sure it is not involved in distorting the public's, investor's, regulator's, insurer's or policy-maker's understanding of the risks of climate change?"
The letter is accompanied by documentation from government and media sources that suggests industry has funded groups that are spreading doubt about climate science. It also indicates they have obstructed advocates for greenhouse gas reduction and lobbied government against regulating and reducing carbon dioxide emissions.
The letter also asks if corporate officials have fully informed insurers of their involvement in any such activities.
A separate letter has gone to 44 insurance companies, including several Canadian firms, asking about their exposure in case clients are found to have helped spread misinformation.
Industry group calls letters a 'stunt'
The Canadian Association of Petroleum Producers dismissed the letters as a "stunt."
"Our member companies are not out there publicly questioning climate science, nor is CAPP," said spokeswoman Geraldine Anderson.
"Canada's oil industry publicly advocates for carbon policy that is effective and maintains an eye to industry's competitiveness. I think it's just Greenpeace's goal to shut down the industry and they're only interested in climate policy that would render Canadian oilsands unable to compete."
Kelli Stevens of Suncor denied her company sows doubt about climate change.
"Our president and CEO has gone on record — in multiple public forums — to say that climate change, as caused by humans, is a concern of his and of Suncor's," she wrote in an email. "We also meet regularly with non-governmental organizations (Greenpeace included) to discuss this and other issues."
Stewart said the idea is to encourage CEOs and directors to consider whether their activities could be exposing their companies to lawsuits.
"There can be consequences for this," he said. "Those corporate executives need to start taking that into account when they decide on where they're going to put their shareholder dollars."
Stewart has a point, said Olszynski, who noted several similarities between the climate change and tobacco issues.
"It's all about identifying some kind of wrongful conduct," he said.
"In the tobacco context, efforts to deny the link between tobacco consumption and cancer seems to have played a fairly significant role. That's the analogy that Greenpeace is trying to draw."
Olszynski said it took enabling provincial legislation before tobacco companies could be taken to court. Given the difficulty of linking specific climate change effects to specific companies, that's likely to be the case here as well.
"In our view, it is extremely likely that, should current predictions with respect to the impacts of climate change bear out, future legislatures will seek to alter the legal landscape to ensure that the relevant industries do not escape liability," Olszynski wrote in his research summary.
"The identification of this potentially significant source of future liability should inform and influence present-day government policy and corporate decision-making."
Such changes would probably take years, Stewart acknowledged. But that's OK, he said.
"This will be an ongoing saga."
Keith Stewart of Greenpeace Canada says the letters are the first step in a long-term campaign to use the law to prevent the energy industry from delaying action on climate change.
He says the strategy was inspired by the ultimately successful campaign to make tobacco companies liable for sowing doubt about the health effects of their products.