[Editor note: This recent post by Lea Giotto of Energy in Depth expounds on the controversial, sputtering involvement of the Niskanen Center and the Colorado climate lawsuit. Her title: “Contradictions Mount as Lawyer for Colorado Climate Lawsuits Struggles to Defend His Role.” For more on the policy shift of Niskanen founder Jerry Taylor from libertarian to climate/energy statism, see here.]

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When David Bookbinder signed up to help Colorado municipalities sue the energy industry for the impacts of global warming, he claimed his purpose was not about climate change. But when he recently attempted to defend his role with those climate lawsuits, the Niskanen Center attorney not only contradicted himself, but may have undermined the broader climate litigation campaign.

Bookbinder – who was previously a climate-focused attorney with the Sierra Club – took an unconventional approach in his latest defense of climate litigation: he penned a guest commentary for the Federalist Society, an organization that has provided a forum for many who express skepticism about the validity of these cases. But Bookbinder’s latest comments may have done more harm than good, as they exposed a number of contradictions about his role and the environmental community’s litigation strategy.

Let’s compare Bookbinder’s key claims against the facts.

BOOKBINDER CLAIM: “The conduct at issue in the climate nuisance cases is that fossil fuel companies manufactured and sold their products knowing that when used as intended, they would disrupt the Earth’s climate system and then require wide-scale adaptation to the changed climate.”

FACT: This statement contradicts what Bookbinder said in an interview in April 2018. When asked if grants from the Rockefeller Brothers Fund and the William and Flora Hewlett Foundation were enabling him to serve as counsel in two Colorado cases, Bookbinder denied there was any connection, because the case had nothing to do with climate:

“This is property rights work, this is not climate work,” Bookbinder told Western Wire. “And if climate litigation no doubt I’ll be involved in it. But this is property rights. Our climate work is primarily carbon tax issues in Washington. There may be litigation attached to climate work but we don’t think of these… as climate litigation.”

Public records show that the Rockefeller Brothers Fund made a $200,000 grant in February 2018 for the Niskanen Center’s “climate program,” and the Hewlett Foundation made a $300,000 grant in late 2017 for Niskanen’s “climate policy and litigation program.” Bookbinder announced his role as counsel in the Colorado lawsuit on April 17, 2018.

When asked about half a million dollars in funding for his organization that was earmarked for climate litigation, Bookbinder was adamant that the Colorado case was about property rights, not climate change. But a few months later, Bookbinder is defending the “climate nuisance cases” by constantly referencing climate change and global warming. Bookbinder even argues that energy companies “knew” their products would “disrupt the Earth’s climate system and then require wide-scale adaptation to the changed climate.”

BOOKBINDER: “Moreover, regardless of the fossil fuel companies’ far superior knowledge of the harms their products would inflict, to hold them responsible for climate-related damages is to hold consumers responsible. Court-determined monetary awards, after all, will be passed on to consumers in the form of higher fuel costs, thus internalizing the environmental externality and holding consumers responsible for the damages they’re imposing. No one has argued that imposing an upstream carbon tax is wrong or unfair because it is only a tax on producers and not consumers, for the simple reason that no one disputes that the producers would incorporate the cost of that tax into the price of their products.” (emphasis added)

FACT: Bookbinder argues that ordering energy companies to pay for climate change through the courts would essentially be the same as putting a tax on those companies, which would ultimately mean holding consumers and taxpayers responsible, as any costs from such a “tax” would be passed along to the end-user.

Here’s a slightly different perspective:

“[These cases] are not comprehensive attempts to address the long-term problem of climate change. They are simply attempts by local governments to have the people responsible for creating the problem to help pay to fix it, rather than foisting these increasing costs on their taxpayers.” (emphasis added)

Who made the above comments? David Bookbinder, in the very next paragraph after he argued that an energy-tax-by-court-victory would also “hold consumers responsible” in the form of higher prices.

In other words, in the span of just a few hundred words, Bookbinder not only completely contradicted himself, but arguably undermine the entire “public nuisance” rationale for these lawsuits.

BOOKBINDER: “Revenues from carbon taxes and emission trading systems could, of course, accomplish that end [i.e. putting the cost of mitigating climate change on energy companies rather than taxpayers], but no existing or proposed tax or cap & trade scheme uses revenues that way.”

FACT: Not only has such a tax been proposed, but Bookbinder’s former employer, the Climate Leadership Council (CLC), was the organization that proposed it. Last February – when Bookbinder still worked there – the CLC proposed a carbon dividends plan that included (1) a gradually increasing carbon tax on fossil fuels producers, and (2) would return “all the proceeds…to the American people on an equal and monthly basis via dividend checks, direct deposits or contributions to their account.”

Why Bookbinder would deny the existence of the CLC carbon plan is anyone’s guess, but it may have something to do with the fact that many of the companies that are part of the CLC are now defendants in cases brought by Bookbinder and other activists.

It’s also possible that Bookbinder did not leave the CLC on the best of terms: the organization mysteriously dropped all mention of Bookbinder from its website after the attorney announced he was serving as co-counsel in the Colorado case. A cached version of the organization’s website shows him as having been publicly affiliated with the group as recently as April 4, 2018 – just two weeks before the Colorado municipalities’ lawsuit was filed.

BOOKBINDER: “Internal documents that have recently come to light establish that oil companies knew as early as 1956, and no later than 1968, what climate harms their gasoline would inflict on the planet—and either said nothing or, even worse, affirmatively denied (until very recently) that global warming was occurring or was caused by burning their products.”

FACT: Given the timing of Bookbinder’s article, he could be forgiven for not being familiar at the time of publication of the 30,000-word New York Times Magazine piece on climate change, which was published earlier this month. But he really should give it a gander because it completely undermines his rationale.

In the article, reporter Nathaniel Rich writes that the fossil-fuel industry is “a common boogeyman” whom many find convenient to blame for why action on climate change wasn’t taken sooner. But found (as EID has reported previously) that pretty much everyone knew about about climate change during the time period when Bookbinder is accusing the fossil fuel industry of concealing information from the public:

“By the mid-50s, you had top government scientists speaking about the issue. You had major articles in Life Magazine and Time. So it wasn’t just industry that was following it. It was at the highest levels of government. Lyndon Johnson sent a special message to Congress in 1965 that discussed the problem.

“It is incontrovertibly true that senior employees at the company that would later become Exxon, like those at most other major oil-and-gas corporations, knew about the dangers of climate change as early as the 1950s. But the automobile industry knew, too, and began conducting its own research by the early 1980s, as did the major trade groups representing the electrical grid.” (emphasis added)

The key part of Bookbinder’s argument is that the companies supposedly “said nothing or, even worse, affirmatively denied” the existence of climate change. As Rich’s article confirms, that claim is demonstrably false.

BOOKBINDER: “[D]ecades later, when [energy companies] finally acknowledge that their products are the dominant cause of global warming, their business plan is to increase production and sales, thereby making this problem even worse.”

FACT: The conspiracy that Bookbinder is attempting to piece together here hinges on asymmetric information: the energy companies supposedly know more than the public and are selling them a product that will hurt them, but consumers don’t have the information to know better.

Given the fact that every story about climate change manages to make headlines in newspapers on a daily basis, this theory is farfetched to say the least. And as Nathaniel Rich confirmed in his article for New York Times Magazine, the idea that the public was left in the dark even half a century ago is similarly unsupported by evidence that can easily be found by searching Google.

Not for nothing, natural gas production continues to drive down emissions and improve air quality. In fact, a recent report from the U.S. EPA found that three of what are largely considered to be some of the most harmful air pollutants–sulfur dioxide, nitrogen oxide, and particulate matter–have collectively declined by 55 percent since 2005, all while natural gas production rose by 23 percent during that same time period. The U.N. Intergovernmental Panel on Climate Change has even connected increased use of natural gas with declining GHGs in the United States.

Conclusion

With three of the more prominent climate lawsuits having been recently dismissed, and the lawsuit in Colorado own suit now removed to federal court – a move the plaintiffs are fighting against – one would expect Bookbinder and other plaintiffs to keep their heads down for fear of causing any more damage to their cases. His recent comments suggest the campaign is looking for any opportunity possible to try to salvage what’s left.

Earlier this year, questions swirled about whether David Bookbinder had misled the public with his role in the Boulder climate lawsuit. The numerous contradictions and false claims in his recent commentary may only lead to increased scrutiny – not just on Bookbinder himself, but also on the activists who are struggling to keep their climate litigation campaign alive.