Energy in Depth provides a useful update on the history of the “attribution” push by the climate litigation industry. The internally acknowledged weaknesses of these years of “attribution” claims are much greater than CLW readers presently know.
We do now know the origin of the most recent claims, a paper that has predictably sent some in the media (with more coming) to pursue a supporting ‘narrative’. Some context is therefore in order.
Attribution in this context means, to quote the lead plaintiffs’ attorney driving the climate nuisance litigation:
“So how do we link emissions to specific corporate emitters? You know, obviously if you can’t tell who’s doing it, you have a problem.”
Problems to building lucrative tort litigation campaigns are to be solved. That’s where “experts” come in.
We now know out this new baseline year of 1965 and the resulting attributions of responsibility are the fruits of a request by the plaintiffs’ attorney in the ‘climate nuisance’ cases, Vic Sher. Sher reveals this in a talk he gave hosted by the defendant in an open records case that has yielded remarkably clarifying information, UCLA Law School (that school’s faculty are consulting on Sher’s climate nuisance cases, out of a litigation center funded by the same donor funding Harvard’s climate litigation center, Dan Emmett).
CLW recently came across this same admission by climate nuisance attorney Vic Sher that EID cites, when reviewing the “attribution” issue.
Consider Sher’s modest October 11, 2017 claim of paternity of the new 1965 “science” baseline, arranged for the tsunami of climate litigation sweeping the nation’s courtrooms, revealing that the new 1965 baseline is result of his 2016 suggestion while thinking about the cases he wanted to bring.
15:26: “So how do we link emissions to specific corporate emitters? You know, obviously if you can’t tell who’s doing it, you have a problem. Well, here, we’ve been working primarily with an expert named Rick HEEDE who is with an outfit called the Climate Accountability Project in Colorado…
17:30: Now, when Rick and I started talking, his original  article went back to I think the 1850s, maybe it was 1874. And I asked him how many companies, that are either U.S. companies or do sufficient business in the United States so we can sue them here, would it take to get to 25% of all of the global emissions, globally, did I mention that – in the world – between 1965 and 2015. We were having this conversation in 2016.
18:45 “Now, let me step back for a second. Why did I choose 25%, and what’s the significance of these figures? Well, in order to prevail, um, uh, on a court claim, a plaintiff has to prove that it’s more likely than not that a defendant or a group of defendants were substantial contributors to the injury that the plaintiff has suffered. And I thought that one in every four tons of carbon emissions during this period during the great acceleration would unquestionably satisfy this substantiality, uh, requirement.”
This is instructive in the larger story of the collaboration between the activists and plaintiffs’ bar, and attorneys general supporting them with amicus briefs – who also are pursuing investigations at the activists’ and tort lawyers’ request, the fact of which is inescapable from the timeline and records CLW has compiled.
Attribution author Richard Heede is not as forthcoming in his acknowledgements of the origins of this work as attorney Sher is in his presentation to a sympathetic audience; Heede’s vague allusions to attorneys (including AGs) as consumers of his work (see pp. vi, 1 and 33) take on an amusing air when read in context of Sher’s admission.
Heede reserves most thanks for his funder, UCS, and the guidance from UCS’s Peter Frumhoff. Recall that it was UCS that funded and Frumhoff who chaired the “secret meeting at Harvard“, “Potential State Causes of Action Against Major Carbon Producers”. At which ‘attribution’ was one of only three agenda items.