Blumenthal Exposes Republican Hypocrisy for Undermining State & Local Lawsuits that Seek to Hold Big Oil & Gas Companies Accountable

[WASHINGTON, DC] – In case you missed it, at a Senate Judiciary Subcommittee hearing on litigation brought by states and municipalities against fossil fuel companies, U.S. Senator Richard Blumenthal (D-CT) exposed Republicans’ hypocrisy in attacking climate lawsuits, despite the long history of states holding other industries accountable using the same kinds of consumer protection laws, including a suit led by the Republican’s own witness, Kansas Attorney General Kris Kobach, against a pharmaceutical company.

In an exchange with Attorney General Kobach, Blumenthal pointed out similarities between the current litigation against fossil fuel companies and those brought against tobacco companies for deceptive and unfair trade practices. In his remarks, Blumenthal specifically drew parallels between the tobacco lawsuits and Connecticut’s current litigation against ExxonMobil Corp. for the company’s systematic campaign to deceive the public about the harmful impact of its products and contributions to climate change.

Blumenthal said to Kobach, “As you well know, your case has been remanded to state court, so you’ll have your day in court there, but no less than if you were in federal court, you’re going have to offer evidence that proves your allegations. Same is true of Connecticut in suing ExxonMobil. I don’t see how, as a lawyer, you can say, well the claims under the statute are wrongly brought just because this is a different industry, and because there is a public debate, because there is a public debate also about the American drug industry.”

“I’m not saying the claims are wrongly brought. I’m saying they’re going to have a much harder time proving the claims because of the—there’s less deception, there’s also third parties, and also the, you have… it’s not just the fossil fuel extraction company, you have the factory that then uses, burns the fuel, you have the individuals themselves who drive to work in a car, probably most of us flew here from somewhere on a plane,” said Kobach.  

“And my time has, my time has expired. But I could take the words, exactly that you’ve just uttered, and substitute ‘tobacco’ and they would be identical to what the tobacco industry was saying about our lawsuit at the time,” Blumenthal concluded.

A video of Blumenthal’s full interaction can be found here, and a transcript can be found below.

U.S. Senator Richard Blumenthal (D-CT): Thanks, Mr. Chairman. The tobacco lawsuit was in fact brought by State Attorneys General, and just as a historical footnote, we went to the Department of Justice and asked them to join us. They refused to do it. They said it couldn’t succeed, and they also said the tobacco companies have never lost a lawsuit, they have never settled a lawsuit, and you’ll lose. Well, as it turned out, eventually all the Attorneys General of the United States of America, including Kansas, joined our lawsuit—after a while, after we were successful, because of the legal action based on the Unfair Trade Practices Act of the state of Connecticut, the state of Minnesota, the state of Massachusetts, the state of Florida. The core states that brought the lawsuit relied on deceptive and unfair practice allegations, saying that the tobacco companies were lying when they said our product doesn’t cause cancer, it doesn’t cause death, it doesn’t cause disease. It was a good old-fashioned garden-variety consumer protection case. It also involved antitrust allegations. In Mississippi it was an equity action. It’s more complicated that I am describing it right now, but your state of Kansas, I think, is probably still getting money. Every year, every state in the country gets money to combat tobacco because it relied on the good old-fashioned consumer protection statutes that say when you make a promise to consumers, it has to be truthful and accurate. And so, I assume that all of the witnesses here support those kinds of consumer actions, correct? I will begin with you, Attorney General.

Kansas Attorney General Kris Kobach:  I do when it fits into the correct legal box. So, for example, the tobacco lawsuits were brought out of the state consumer protection acts that you mentioned, and every state has one, and they are based on the notion, which is very clearly laid out, that the manufacturer of a product misrepresents the product to the consumer and the consumer purchases it and suffers some injury or harm, and it’s because of that deception. It’s much harder to fit climate change lawsuits into that box because you don’t, there’s no secret about the fact that fossil fuels are used in internal combustion engines, and that those internal combustion engines emit CO2.

Blumenthal: Well, the state – but the state of Connecticut is suing ExxonMobil, right now, under the Connecticut Unfair Trade Practices Act, saying basically, it’s lying about its product and the dangers and damages done by its product. You are suing Pfizer. Same kinds of allegations, correct?

Kobach: The similarity is…

Blumenthal: But no one is accusing you of trying to destroy the American drug industry?

Kobach: No, I don’t think so, but I think they’re not the same. They’re the same – they both try to use a consumer protection box to put the case in. In the case of Pfizer, they said, made certain representations about their product, and that turned out to be contrary to the information they had, and the individual took it to direct harm to himself. In the case of fossil fuels, you have a broad public debate about the harms, and how big they are, and who’s causing the harms. You also have third parties, because it’s not just the oil company…

Blumenthal: But, in open court, Connecticut has to prove its allegation, the facts behind the allegation, that in fact the company is misrepresenting its product. Just as you have to prove, by the way –

Mr. Kobach: Right. Absolutely, yes.

Blumenthal: — as you well know, your case has been remanded to state court, so you’ll have your day in court there, but no less than if you were in federal court, you’re going have to offer evidence that proves your allegations. Same is true of Connecticut in suing ExxonMobil. I don’t see how, as a lawyer, you can say, well the claims under the statute are wrongly brought just because this is a different industry, and because there is a public debate, because there is a public debate also about the American drug industry.

Kobach: I’m not saying the claims are wrongly brought. I’m saying they’re going to have a much harder time proving the claims because of the—there’s less deception, there’s also third parties, and also the, you have… it’s not just the fossil fuel extraction company, you have the factory that then uses, burns the fuel, you have the individuals themselves who drive to work in a car, probably most of us flew here from somewhere on a plane.

Blumenthal: And my time has, my time has expired. But I could take the words, exactly that you’ve just uttered, and substitute “tobacco” and they would be identical to what the tobacco industry was saying about our lawsuit at the time. Thanks, Mr. Chairman.

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