By Jie Jenny Zou and Chris Young of the Center for Public Integrity
But the all-expenses-paid event hosted by George Mason University’s Law & Economics Center in Arlington, Virginia, served another purpose: it was the first of several seminars designed to promote “skepticism” of scientific evidence among likely candidates for the 140-plus federal judgeships Donald Trump will fill over the next four years.
The lone science instructor was Louis Anthony Cox Jr, a risk analyst with deep industry ties whose recent appointment as chair of the US Environmental Protection Agency’s clean air scientific advisory committee drew condemnation in public-health circles. Since 1988, Cox has consulted for the American Petroleum Institute, a lobby group that spent millions to dispute the cancer-causing properties of benzene, an ingredient in gasoline, and is now working to question the science on smog-causing ozone. He’s also testified on behalf of the chemical industry and done research for the tobacco giant Philip Morris.
For a $4,000 honorarium, Cox delivered two closed-door lectures at George Mason: “a primer on the scientific method” followed by a session aimed at “understanding what science can and cannot do”. Included in his presentation were slides urging judges to be wary of EPA science on fine particles – a pollutant he has been researching for API.
The symposium included a dinner at Capitol Hill’s upscale Charlie Palmer Steak, whose website says it “moves the political power meetings out of the back room and into private dining spaces”. Events such as the symposium are one way big oil is trying to impart free-market values to judges and attorneys general as the industry gears up for legal battles on multiple fronts.
Based in George Mason’s Antonin Scalia Law School, the Law & Economics Center espouses a free-market approach to policy. A 2013 investigation by the Center for Public Integrity found that the libertarian thinktank hosted more judicial conferences than any other university program in the country, fueled by conservative and big-business donors. Over the past two years, roughly $4.5m of $18.6m in contributions to the Law & Economics Center came from oil and gas interests, including Koch Industries, ConocoPhillips, ExxonMobil and API, which represents more than 650 corporations.
The center claims to have trained more than 5,000 state and federal judges, including three sitting supreme court justices. Almost 1,000 state attorneys general and their staff attorneys have attended its programs. Its advisory board includes three judges on the US court of appeals for the District of Columbia circuit, widely considered the country’s second-most-powerful court and, often, the final arbiter for federal administrative law cases.
In a White House riven by discord and staff departures, judicial appointments have been a bright spot. Senate Republicans have embraced the chance to fill a glut of vacancies, helping Trump install more conservative judges and potentially transform the legal landscape for decades to come. Once confirmed, a federal judge can serve for life, presiding over an average of 500 to 600 cases a year.
A Washington trade group with 300-plus employees, API has spent more than $40m to lobby Congress since 2013. But the courts have also been a focal point for API, which has spent the better part of a century helping the oil and gas industry pivot from being a prime antitrust target to being a proactive litigation force. The institute, along with other free-market trade groups, has routinely injected itself into cases in an attempt to shape policy or stall government initiatives. API officials did not grant interview requests from the Center for Public Integrity.
With a new era of environmental deregulation under way, issues ranging from the Obama administration’s clean power plan to offshore drilling in the Arctic are landing in the courts for final say. The stakes are enormous for the industry, which is simultaneously confronting a wave of lawsuits that seek billions of dollars in damages for climate-change impacts. Among the defendants are API members such as ExxonMobil.
Unlike government and the public, industry can afford to wait. “In many of these matters, litigation goes on decades and decades,” said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law. “Time is on industry’s side.”
Decades of legal wrangling
In 1940, API faced a lawsuit so expansive that three pages of the complaint simply listed defendants – all 379 of them.
United States of America v American Petroleum Institute et al alleged wide-scale collusion and price-fixing by 22 major oil companies and their 300-plus affiliates, which controlled a total of $9bn in assets (the equivalent of $160 billion today). The case never made it to trial. It was neutered early on by 11 oil executives working closely with the White House to ensure an allied victory in World War II.
After languishing in the courts for years, the lawsuit was dismissed in 1951 by the justice department, which found it to be a logistical nightmare. Gone, too, was the government’s interest in dissolving API as a monopolistic tool of industry. This year, API wriggled out of public scrutiny once more. In yet another potentially landmark case, lawyers suing the US government for inaction on climate change tried to compel the institute to turn over decades of internal records. API had joined the case to help defend the government but dropped out rather than reveal what it knew about global warming and when.
“They’re a highly sophisticated, integrated political operation,” said Bob Brulle, an environmental sociologist at Drexel University. API’s effectiveness, Brulle said, lay in its partnerships with like-minded groups such as the American Chemistry Council, the National Association of Manufacturers and the US Chamber of Commerce – amplifying its message “in a very directed, coordinated way”. In 2016, the institute absorbed its only real competitor, America’s Natural Gas Alliance.
On 30 November 1999, representatives of more than 20 lobby groups met at the institute’s Washington DC headquarters to muster opposition to an EPA plan to regulate greenhouse gases under the Clean Air Act.
Leading that meeting was the API lobbyist Phil Cooney, who in 2001 had become head of environmental policy for George W Bush’s White House, where he altered federal reports to sow doubt on climate change. Under Bush, the EPA retreated from its earlier position, claiming it didn’t have the authority to regulate greenhouse gases after all. Cooney could not be located for comment.
The issue came to a head in 2003, when 12 states sued the EPA to force its hand. Coming to the agency’s defense was the CO2 Litigation Group, a newly formed coalition of 14 trade associations – including API. The coalition represented a spectrum of fossil-fuel companies, which argued that the EPA had “oversimplified” and overstated the certainty of climate change’s effects.
The case, Massachusetts v EPA, was decided in the states’ favor by the US supreme court in 2007. But the matter continued to be tied up in the courts and the EPA bureaucracy, and it wasn’t until 2011 that the agency finally began regulating greenhouse gases. This gave rise to Obama’s 2015 clean power plan, which targeted carbon dioxide emissions and became mired in litigation before the Trump administration marked it for extinction.
‘What we want is a plan’
The back-and-forth of politics can be dispiriting. For that reason, James Hansenhas staked his family’s future – and the planet’s – on the courts. His granddaughter, Sophie Kivlehan, is one of 21 child and teenage plaintiffs in Juliana v United States, a 2015 lawsuit that faults the government for failing to address climate change over half a century.
“What we want is a plan – just for the government to have a plan,” said Hansen, a former NASA scientist who now directs the Earth Institute at Columbia University and is acting as a scientific expert in the case. Last year, industry groups including API became parties to the case.
It was Hansen’s congressional testimony as director of NASA’s Goddard Institute for Space Studies in the sweltering summer of 1988 that elevated global warming from simmering concern to boiling reality. With “99%” certainty, Hansen explained that the trend was a side effect of fossil-fuel combustion that would worsen without swift action. Months later, a group that would come to include 170 scientists from 25 countries united to confront what it called “the greatest global environmental challenge facing mankind”.
When Hansen returned to Capitol Hill in 1989, he found his testimony heavily edited by the White House Office of Management and Budget under President George HW Bush. The office softened his conclusions, tacked on a paragraph qualifying his findings and otherwise stirred uncertainty about human causes of climate change.
‘We were just playing a game of Whack-a-Mole’
While many have focused on what, and when, companies such as ExxonMobil knew about climate change, Julia Olson – a lawyer with Our Children’s Trust, a legal aid group representing the Juliana plaintiffs – is making a case for government complicity.
After years of litigating environmental cases, Olson realized she was dealing with symptoms of a disease, not the disease itself. “We were just playing a game of Whack-a-Mole. One new part of our fossil fuel energy system would pop up, and we’d challenge it, and then it’d pop up somewhere else.”
She turned her attention to the government, which “chooses the winners and losers” and has long abetted fossil fuels, she said, allowing the industry to drill, mine and build. “Everyone wants Exxon to be the enemy,” Olson said, but “every administration has made that decision to perpetuate fossil fuels.”
After digging through presidential archives, her researchers found what they believe is the earliest White House reference to climate change: a 1961 letter from Senator Clinton Anderson of New Mexico to John F Kennedy, recounting a meeting a day earlier at which they discussed a Fortune article warning of sea-level rise from a warming climate.
Lyndon B Johnson was the first president to publicly acknowledge such warming. In a speech in January 1965, he described how “a steady increase in carbon dioxide from the burning of fossil fuels” was permanently altering the planet. By year’s end, his science advisory board had delivered a detailed report on the “invisible pollutant” capable of melting ice caps and raising sea levels.
Despite these early warnings, little has been done, Olson said. Since Hansen’s 1988 testimony, there have been more excessively hot years than at any other time on record. Two international accords tackling climate change have been brokered, with the United States conspicuously absent on both.
Though not named in Juliana, API, the National Association of Manufacturers and the American Fuel & Petrochemical Manufacturers quickly intervened in the lawsuit, asserting their right to protect their members’ economic interests. The move awkwardly put the fossil-fuel groups on the same side as the Obama administration.
Their involvement in Juliana was short-lived. In late February, plaintiffs filed a detailed 21-page discovery request for API alone, seeking decades of internal communications, policies and reports related to climate change. By late June, all three trade groups had exited a case they had voluntarily joined. A judge allowed them to drop out after they were unable to agree on the causes and effects of greenhouse gases.
Senator Sheldon Whitehouse, a Democrat of Rhode Island, suspects the groups “fled to avoid having to make the disclosures”. A vocal supporter of the Juliana action, Whitehouse believes the courts will hold industry accountable. “You have a judge and you have sanctions for not telling the truth, and that is a combination that for decades the fossil fuel industry has sought to avoid like Kryptonite.”
Other climate-related lawsuits have followed Juliana, which is set for trial in 2018. Last summer, three California coastal communities filed suit against 37 fossil-fuel companies, blaming their greenhouse-gas emissions for rising sea levels. In September, San Francisco and Oakland became the first major US cities to sue oil companies to cover past and future flood damage. In November, a Pennsylvania lawsuit alleged that the Trump administration is using “junk science” to roll back climate policies. A lawsuit pitting Portuguese schoolchildren against 47 European countries for failing to act on climate is in the works.
Criticizing the science
When Gregory Conko began organizing the October judges’ symposium at George Mason University, he wanted to ensure that participants left knowing science’s limitations. “Even good science cannot always answer the questions regulatory agencies ask,” he wrote to Louis “Tony” Cox, the risk analyst, in a May email obtained by the Center for Public Integrity through a records request. “Even the best science is not capable of yielding normative judgments about whether something is necessarily good or bad, safe or dangerous, etc.”
Conko headed the Competitive Enterprise Institute – a libertarian thinktank known for fostering climate-change denial – before joining Mason’s Law & Economics Center last winter. Before Conko settled on Cox to lead the seminar, Nancy Beck, a former policy director for the American Chemistry Council who is now the EPA’s top official on toxic chemicals, was a candidate, emails show. So was Michael Gough, a toxicologist with ties to the tobacco industry and oil-backed climate-change denial groups. Conko declined requests for an interview.
Like Beck and Gough, Cox has championed narratives amenable to industry’s bottom line but not supported by mainstream science. In 2015, Cox said that “no detectable public health benefits” would result from a stricter EPA ozone limit. His testimony was cited in an op-ed by the API president, Jack Gerard, who ended the column with a warning: “Economic recovery is far from complete, and saddling the nation’s job creators with burdensome new restrictions threatens to deal another blow to the middle-class economy.”
What Gerard didn’t mention was Cox’s history with the institute, which spans decades. At the time the column was published, Cox was receiving funding from both the institute and the American Chemistry Council, which also represents petrochemical companies.
In an interview, Cox denied that industry funding influenced his findings. He criticized EPA science as flawed, saying it assumed links that hadn’t been proven. “I see a tremendous lack of clarity when agencies say there’s reason to believe X causes Y,” Cox said. “The proposition that the science is settled – ‘We don’t need to look at this’ – it’s a bad proposition.”
Cox holds a doctorate in electrical engineering and computer science and a master’s degree in operations research, which focuses on decision-making – both from MIT. Asked about his involvement in the George Mason symposium, Cox said: “Judges in particular should have a healthy skepticism, especially about claims of causality.”
Fellow risk analyst and friend Adam Finkel counts Cox among an elite few who have the credentials for risk analysis, an amalgam of health sciences, economics, policy-making and statistics. But their views on what should or shouldn’t be regulated couldn’t be further apart.
A former director of health standards programs at the US Department of Labor’s Occupational Safety and Health Administration, Finkel has spent his career trying to strengthen worker protections against toxic substances.
Finkel said it was “disappointing to me that someone as smart as [Cox] is” would take a different view, arguing the weight of evidence was not on Cox’s side. “He’s just lost his way,” Finkel said.
Read more in the Center for Public Integrity’s special report, Unites States of Petroleum
Excerpt from https://www.theguardian.com/us-news/2014/nov/05/climate-scientist-klaus-jacob-warning-new-york-city-hurricane-sandy
Klaus Jacob has been saying the same thing for decades. But only now are people starting to listen to him.
In the fall of 2011, the esteemed Columbia University climate scientist published a prophetic report estimating how much damage New York’s subway system would suffer in the event of a major storm. One year later, when hurricane Sandy brought the Hudson river pouring into subway stations citywide, that report proved eerily accurate.
The press promptly named Jacob the Cassandra of NYC Flooding – a man whose valid, persistent warnings had gone unheeded for years.
Jacob and I met at Columbia on a fittingly rainy day. He had agreed to explain how and whether New York City is protecting us from the next big storm for this series, Stormproofing the City.
Are we safe?
No. Of course we’re not safe. It’s only two years after Sandy, and the $50bn provided by Congress for post-Sandy resilience funding is only gradually trickling through the pipelines, from the federal through the state to the local communities. [Reporter’s note: less than a quarter of the funding has been paid out.] It’ll take at least another several years before that money is spent. The MTA is just getting their money now. What took almost two years to write a check?
When the city finally receives the funding, will it be meaningfully spent? That’s the big question. By and large, government agencies and the private sector are doing more rebuilding than pro-building for the future. Some projects can actually make it worse for future generations.
Why? Well, there are fundamentally three ways to adapt to climate change and sea level rising.
- One is protect: keep the water out.
- The second is accommodate the water. Invite it into the city. Make the city as immune as you can from the presence of it.
- The third, and the hottest potato politically, is strategic resettlement. Strategic resettlement is the most sustainable here, because New York has topography that other cities don’t. We have places like the Greenwood Cemetery that are 220 feet above sea level, where nobody lives except the dead! And we put the living in the water.
What are some of New York’s resilience measures that actually create risk for the future?
Take, for instance, the Big U, which came from the Housing of Urban Development’s Rebuild by Design competition. It builds a levy and dam system into a nicely designed park, a multipurpose structure.
The city should be proud of the project. Except … it has a fixed height. As the sea level rises, you need ever smaller storms to overcome it. It’s exactly New Orleans’ problem during Katrina. People think, ‘We have this Big U, we’re safe.’ But you’re building up risk behind the U until it becomes dysfunctional.
I’m not saying it will leak during the first ten years, but the sea level rise calculated is out to the 2050s. What about the 2080s? 2100? You just postpone the problem for future generations.
How can you get people to care about 2100? It seems so far away.
I don’t understand why we are almost unethical towards our children’s children.
I’m not saying we have to build the city today for 2100. I’m only saying we shouldn’t take measures now that become problems for the people living in 2100.
The whole basic concept of sustainability is to avoid intergenerational inequities and injustices. We throw around the word, but we’re violating that principle. The city has certainly done many wonderful things to become greener. But I don’t understand why we are so almost unethical towards our children’s children.
So tell me what the second way to adapt to rising sea levels – accommodation to water – would look like.
We could make downtown Manhattan like it was during the Dutch time – Broad Street was a canal. It had boats and ships. Let’s open it up again and let Water Street be Water Street and Canal Street be Canal Street. Venice on the Hudson!
So you’d then have to create submersible infrastructure for electric, gas, and communications – but we lay telephone cables across the ocean. We’ve run subways under the East River for over 100 years. Use the same technology! Build high lines for automobiles – raising normal traffic 30 feet will last you a couple of centuries.
If a storm like Sandy was to happen again tomorrow, would it be different?
No, it would be almost the same. Take the MTA: they recently received $300m from the Federal Transit Administration. It will take a few years to implement that. And what’s the money for? Stormproofing five stations downtown. That’s it.
What’s missing is the political will to do a rational assessment of costs and benefits. It’s so clearly worthwhile to incur some debt now to avoid downstream losses. But there’s something wired wrongly in our brains – we like to win lotteries, not put a dollar down now to save four later.
We need a lot more Katrinas and earthquakes and storms before we get smarter.
How much of the efforts here in New York reflect other cities in the US?
Other cities, other problems, other solutions … or no solutions. San Francisco is looking carefully, though they worry more about earthquakes. Kings County in Seattle is doing nice things. A group in New Orleans is working toward letting the water in – a laudable effort – though I’m not sure what chances they have. Houston has taken care of its urban flash flooding, but there are big problems with sea level rising there in the future.
And Miami: forget it. The highest place you can live in Miami is only 18ft above sea level. Miami, no.
Even if you believed in protection, it wouldn’t work there. Miami sits on sponge-like limestone, which is worse than swiss cheese: the holes are all connected to each other. If you build a dam or levy on it, the water just flows underneath.
In 100 or 200 years, I’m not sure whether anybody will know where Miami is.
Some of the things you’re saying are scary and may be hard for people to hear.
It shouldn’t be scary.
It provides incredible opportunities to fix problems that we otherwise wouldn’t be able to dream of. We can build entire new cities, or amendments to cities, in the way we want them. What’s so scary about that?
I mean, look. I grew up as a young boy just when world war two ended. It was a miserable time. Who ended up renewing all its infrastructure and rebuilding? Japan and Germany. It all turned into an opportunity.
As I continue my interviews [in this series], what sorts of answers should I take with a grain of salt?
Always question if you hear someone say that the post-Sandy recovery was a success. No. It was not a success. 90% of applicants for the city’s Build it Back program haven’t seen any financial assistance. Come on.
What amazes me are the proposals that haven’t been tabled – like Seaport City, which supports new luxury housing at the waterfront, in harm’s way. They argue that if you build it high enough, it’ll protect the neighborhoods behind it. Give me a break. That may be true for a couple of decades, but fundamentally it’s a misinvestment.
The real estate sector is extraordinarily influential in this city. The mayor’s office tends to be more or less beholden to it. What I’m saying goes against what they’ve been preaching for 30 years: that a waterfront apartment is a good investment.
What else needs to be done to protect New York from future storms?
We still have no serious plan for the people in the Rockaways and Red Hook. We do have temporary walls in Red Hook, and I like that they don’t pretend to be permanent. They look like the Band-Aid that they are. But you can’t wear a Band-Aid for long, particularly when the wound keeps bleeding. You have to do something about it.
Would places like the Rockaways and Red Hook benefit from your third way to adapt – “strategic relocation”?
Yes. Let’s create waterfront parks and start to resettle the higher grounds. It takes 50–100 years to shape a new city. We have to start putting financial instruments in place sometime.
What are financial instruments?
We have examples of things that work. NGOs go to farmers in upstate New York and say: “You stay and farm as long as you want, but if you want to quit, let us buy the land. Don’t sell it to developers. We’ll ensure that it stays farmland.” We could go to people in the Rockaways and say, “If you’re ready to leave, sell to us, the public. We’ll help you find a new place to settle.”
Is there anyone else I should talk to that could help me understand how New York is being stormproofed?
Ask the Federal Reserve how to finance something like resettlement – how to make public bonds, how to have Goldman Sachs put a little brains into it.
Also call [director of the mayor’s office of recovery and resiliency] Dan Zarilli. He thinks I’m his nemesis, but he’s smart as hell. I’m always holding him accountable for short-term thinking with Seaport City. Sure, I don’t have to deal with politics and the real estate industry – I don’t envy his position. But that doesn’t make him right.
Last question: what keeps you up at night?
My sleep is very good.
Ok. What’s your biggest fear?
That we will muddle along and lose time that we could have spent so much more productively. Yes, we are of different minds politically, but Mother Earth doesn’t care whether you’re rich or poor or what state boundary you live on. And unless we find consensus that we’re in trouble, we’ll be in trouble.
This interview is part of a series called Stormproofing the City.