Climatists Fail to Coerce Exxon and Chevron

Another skirmish ends in activist defeat, as reported in Pension and Investments Exxon, Chevron given OK to dismiss shareholder climate proposal. Excerpts in italics with my bolds.

The Securities and Exchange Commission granted requests by Chevron Corp. and Exxon Mobil Corp. to again reject a shareholder proposal calling for reports on how the companies are addressing climate change goals. Similar proposals filed last year were also allowed to be excluded for Exxon after its challenge.

A document on the agency website noted briefly that SEC staff agreed March 20 with requests by company officials to exclude proposals from a group of shareholders, including the Church of England and As You Sow, asking if the companies will join other oil and gas companies in taking steps to align with the Paris Agreement goal of net-zero emissions by 2050, and calling for reduction targets, long-term business plans and other details.

“That suggests to me that the SEC doesn’t fully understand the issues on climate reporting we have requested,” As You Sow President Danielle Fugere said in an interview. The shareholder group called current reporting by Exxon and Chevron “confusing at best,” and Ms. Fugere said that the companies “are misleading investors by suggesting that they align” with the Paris goals.

Sanford Lewis, an attorney for the shareholders’ group, said that SEC staff have made it more difficult for shareholders to file climate change-related proposals at major oil companies by interpreting them as micromanaging, which allows the companies to be less specific in their reporting.

The SEC action letter is Response of the Office of Chief Counsel Division of Corporation Finance Re: Exxon Mobil Corporation Incoming letter dated January 14, 2020. Excerpts with my bolds.

The Proposal requests that the board conduct an evaluation and issue a report describing if, and how, the Company’s lobbying activities align with the goal of limiting average global warming to well below 2 degrees Celsius (the Paris Climate Agreement’s goal). The Proposal also indicated that the report should address the risks presented by any misaligned lobbying, and the Company’s plans, if any, to mitigate these risks.

There appears to be some basis for your view that the Company may exclude the Proposal under rule 14a-8(i)(11). We note that the Proposal is substantially duplicative of a proposal previously submitted by Boston Trust Walden that will be included in the Company’s 2020 proxy materials because the two proposals share a concern for seeking additional transparency from the Company about its lobbying activities and how these activities align with the Company’s expressed policy positions, of which one is the Company’s stated support of the Paris Climate Agreement. Accordingly, we will not recommend enforcement action to the Commission if the Company omits the Proposal from its proxy materials in reliance on rule 14a-8(i)(11).

Anti-fossil fuel activists want to force Exxon and Chevron to accept and conform to IPCC beliefs, as shown below by the text of the draft shareholder proposal. (included in the SEC action letter pdf above)

The Proposal

Climate Lobbying Report Shareholders request that the Board of Directors conduct an evaluation and issue a report within the next year (at reasonable cost, omitting proprietary information) describing if, and how, ExxonMobil’s lobbying activities (direct and through trade associations) align with the goal of limiting average global warming to well below 2 degrees Celsius (the Paris Climate Agreement’s goal). The report should also address the risks presented by any misaligned lobbying and the company1s plans, if any, to mitigate these risks.

Supporting Statement

According to the most recent annual “Emissions Gap Report” issued by the United Nations Environment Programme (November 26, 2019), critical gaps remain between the commitments national governments have made and the actions required to prevent the worst effects of climate change. Companies have an important and constructive role to play in enabling policy-makers to close these gaps.

[Note how many baseless statements are in this paragraph.  UNEP has no legal authority for its claims.  Its carbon budgeting rationale is spurious.  National commitments are voluntary and would not bend the curve in the unlikely event they were achieved.  Companies are not bound by UN bureaucrats.  Even so, energy companies have led to US to outperform other nations in reducing emissions.]

Corporate lobbying activities that are inconsistent with meeting the goals of the Paris Agreement present regulatory, reputational and legal risks to investors. These efforts also present systemic risks to our economies, as delays in implementation of the Paris Agreement increase the physical risks of climate change, pose a systemic risk to economic stability and introduce uncertainty and volatility into our portfolios. We believe that Paris-aligned climate lobbying helps to mitigate these risks, and contributes positively to the long-term value of our investment portfolios.

[Here we have the attack on free speech and the right to voice a different opinion.  Paris Accord documents are sacrosanct, and no dissent is allowed.  Activists object to any effort to ensure the supply of carbon-based energy to consumers who want and are willing to pay for it.]

Of particular concern are the trade associations and other politically active organizations that speak for business but, unfortunately, too often present forceful obstacles to progress in addressing the climate crisis.

[The tactic is guilt by association and social excommunication of contrary viewpoints.  Having failed to convince the public to stop using fossil fuels, they seek to discredit and deny the many social benefits derived from these energy products.]

As investors, we view fulfillment of the Paris Agreement’s agreed goal-to hold the increase in the global average temperature to “well below” 2•c above preindustrial levels, and to pursue efforts to limit the temperature increase to l.S°C- as an imperative. We are convinced that unabated climate change will have a devastating impact on our clients, plan beneficiaries, and the value of their portfolios. We see future “business as usual” scenarios of 3-4°C or greater as both unacceptable and uninvestable.

[Thus they proclaim their virtuous understanding, without themselves withdrawing from travel and other activities and practices dependent on fossil fuel products.]

Two hundred institutional investors managing $6.5 trillion recently wrote to ExxonMobil, seeking information on how the company is managing this critical governance issue. Insufficient information is presently available to help investors understand how ExxonMobil works to ensure that its lobbying activities, directly, in the company’s name, and indirectly, through trade associations, align with the Paris Agreement’s goals, and what ExxonMobil does to address any misalignments it has found. The investors received no response to their letter.

[Now the appeal to “consensus” shared by woke investment managers that they can put their beliefs above the interests of investors needing to raise income for their future needs.]

We commend the company for recent positive steps, such as public support for strong methane regulations and the decision to withdraw from membership in the American Legislative Exchange Council (ALEC) because of ALEC’s positions on climate change. However, information we do have on ExxonMobil’s ongoing lobbying efforts through trade associations still presents serious concerns.

Climate Activists storm the bastion of Exxon Mobil, here seen without their shareholder disguises.

[Someone’s deep pockets are behind all this legal activity and surveillance intending to constrict and financially damage energy companies.]

Thus, we urge the Board and management to assess the company’s climate related lobbying and report to shareholders.

[As members of modern society our health and prosperity depend heavily upon carbon-based energy that has raised so many out of poverty and deprivation.  We urge the company to maintain and extend the supply of reliable and affordable energy, and to engage with private and public partners to that end.]

Climate Lawsuit Dominos

Climate Dominos

Posted to Energy March 05, 2020 by Curt Levey writes at InsideSources Climate Change Lawsuits Collapsing Like Dominoes.  Excerpts in italics with my bolds.

Climate change activists went to court in California recently trying to halt a long losing streak in their quest to punish energy companies for aiding and abetting the world’s consumption of fossil fuels.

A handful of California cities — big consumers of fossil fuels themselves — asked the U.S. Court of Appeals for the Ninth Circuit to reverse the predictable dismissal of their public nuisance lawsuit seeking to pin the entire blame for global warming on five energy producers: BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell.

The cities hope to soak the companies for billions of dollars of damages, which they claim they’ll use to build sea walls, better sewer systems and the like in anticipation of rising seas and extreme weather that might result from climate change.

But no plaintiff has ever succeeded in bringing a public nuisance lawsuit based on climate change.

To the contrary, these lawsuits are beginning to collapse like dominoes as courts remind the plaintiffs that it is the legislative and executive branches — not the judicial branch — that have the authority and expertise to determine climate policy.

Climate change activists should have gotten the message in 2011 when the Supreme Court ruled against eight states and other plaintiffs who brought nuisance claims for the greenhouse gas emissions produced by electric power plants.

The Court ruled unanimously in American Electric Power v. Connecticut that the federal Clean Air Act, under which such emissions are subject to EPA regulation, preempts such lawsuits.

The Justices emphasized that “Congress designated an expert agency, here, EPA … [that] is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions” and better able to weigh “the environmental benefit potentially achievable [against] our Nation’s energy needs and the possibility of economic disruption.”

The Court noted that this was true of “questions of national or international policy” in general, reminding us why the larger trend of misusing public nuisance lawsuits is a problem.

The California cities, led by Oakland and San Francisco, tried to get around this Supreme Court precedent by focusing on the international nature of the emissions at issue.

But that approach backfired in 2018 when federal district judge William Alsup concluded that a worldwide problem “deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” Alsup, a liberal Clinton appointee, noted that “Without [fossil] fuels, virtually all of our monumental progress would have been impossible.”

In July 2018, a federal judge in Manhattan tossed out a nearly identical lawsuit by New York City on the same grounds. The city is appealing.

Meanwhile, climate lawfare is also being waged against energy companies by Rhode Island and a number of municipal governments, including Baltimore. Like the other failed cases, these governments seek billions of dollars.

Adding to the string of defeats was the Ninth Circuit’s rejection last month of the so-called “children’s” climate suit, which took a somewhat different approach by pitting a bunch of child plaintiffs against the federal government.

The children alleged “psychological harms, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property” and sought an injunction forcing the executive branch to phase out fossil fuel emissions.

Judge Andrew Hurwitz, an Obama appointee, wrote for the majority that “such relief is beyond our constitutional power.” The case for redress, he said, “must be presented to the political branches of government.”

Yet another creative, if disingenuous, litigation strategy was attempted by New York State’s attorney general, who sued ExxonMobil for allegedly deceiving investors about the impact of future climate change regulations on profits by keeping two sets of books.

That lawsuit went down in flames in December when a New York court ruled that the state failed to prove any “material misstatements” to investors.

All these lawsuits fail because they are grounded in politics, virtue signaling and — in most cases — the hope of collecting billions from energy producers, rather than in sound legal theories or a genuine strategy for fighting climate change.

But in the unlikely event these plaintiffs prevail, would they use their billion dollar windfalls to help society cope with global warming?

It’s unlikely if past history is any indication.

State and local governments that have won large damage awards in successful non-climate-related public nuisance lawsuits — tobacco litigation is the most famous example — have notoriously blown most of the money on spending binges unrelated to the original lawsuit or on backfilling irresponsible budget deficits.

The question of what would happen to the award money will likely remain academic. Even sympathetic judges have repeatedly refused to be roped by weak public nuisance or other contorted legal theories into addressing a national or international policy issue — climate change — that is clearly better left to elected officials.

Like anything built on an unsound foundation, these climate lawsuits will continue to collapse.

Curt Levey is a constitutional law attorney and president of the Committee for Justice, a nonprofit organization dedicated to preserving the rule of law.

Update March 10

Honolulu joins the domino lineup with its own MeToo lawsuit: Honolulu Sues Petroleum Companies For Climate Change Damages to City

Honolulu city officials, lashing out at the fossil fuel industry in a climate change lawsuit filed Monday, accused oil producers of concealing the dangers that greenhouse gas emissions from petroleum products would create, while reaping billions in profits.

The lawsuit, against eight oil companies, says climate change already is having damaging effects on the city’s coastline, and lays out a litany of catastrophic public nuisances—including sea level rise, heat waves, flooding and drought caused by the burning of fossil fuels—that are costing the city billions, and putting its residents and property at risk.

“We are seeing in real time coastal erosion and the consequences,” Josh Stanbro, chief resilience officer and executive director for the City and County of Honolulu Office of Climate Change, Sustainability and Resiliency, told InsideClimate News. “It’s an existential threat for what the future looks like for islanders.”  [ I wonder if Stanbro’s salary matches the length of his job title, or if it is contingent on winning the case.]

Court Thwarts Seattle Climate Power Play

News today that the Washington state supreme court has blocked a scheme by Governor (and erstwhile candidate for climate President) Inslee from taking over the energy industry.  Washington state is a place where leftist progressives live in large numbers in and around Seattle and impose their virtue signalling ideas on the rest of the population who are more skeptical.

This story is also of interest since the maneuver follows the practice of weaponizing environmental law to overthrow society’s dependence on energy from fossil fuels.  For example, NGO lawyers have attacked permits for infrastructure like pipelines by demanding that the assessment also include emissions from end users burning the gas or oil after it has left the pipeline.  In the Washington state case, Inslee tried to put the Department of Ecology in charge of taxing energy used by the transportation industry under the auspices of a Clean Air Act. This was in fact an end run around the defeat of a state carbon tax in the last election.

The story from the Seattle Times is State Supreme Court limits Gov. Inslee’s rule cutting greenhouse-gas emissions  Excerpts in italics with my bolds.

The Washington State Supreme Court has invalidated key portions of a rule imposed by the administration of Gov. Jay Inslee capping greenhouse-gas emissions by fuel distributors, natural-gas companies and other industries.

In a 5-4 ruling Thursday, the court upheld a 2017 lower-court decision that the state Department of Ecology had exceeded its legal authority in trying to apply clean-air standards to “indirect emitters” that don’t directly burn fossil fuels.

“The issue is not whether man-made climate change is real — it is,” wrote Chief Justice Debra Stephens in the majority opinion. However, Stephens wrote, the department’s efforts to enforce the state Clean Air Act went beyond what had been authorized by the law.
[That is a social opinion not a legal one since IPCC suppositions have not yet been litigated.]

“We are confident that if the State of Washington wishes to expand the definition of emission standards to encompass ‘indirect emitters,’ the Legislature will say so. In the meantime. Ecology may not claim more authority than the Legislature has granted in the Act,” Stephens wrote.

The state had projected the rule would reduce emissions by 20 million metric tons by 2035 — about two-thirds of the target established by the Legislature in 2008. But three-quarters of that reduction would have come from applying the regulation to indirect emitters, according to the court ruling.

[The hypocrisy is striking; people who burn gasoline in their cars and trucks are directly responsible for those emissions, not their suppliers.  Energy products are provided in a free society to those who want and can afford to pay for them.  Those who want to live without such energy are also free to make that choice.  But beware, in modern nations like the G20 nearly 90% of energy comes from burning fossil fuels. CO2 zealots want to shut off the supply for everyone else instead of themselves.  Socialism is another name for shared misery]

Figure 12: Figure 9 with Y-scale expanded to 100% and thermal generation included, illustrating the magnitude of the problem the G20 countries still face in decarbonizing their energy sectors.

During a news conference, Inslee said he disagreed with the court majority’s central conclusion but hasn’t yet decided whether to ask lawmakers to amend the Clean Air Act to include indirect emitters.

State Sen. Doug Ericksen, R-Ferndale, praised the court ruling in a statement calling the clean-air rule “a classic example of government arrogance and overreach.”

A longtime opponent of Inslee’s climate agenda, Ericksen, the ranking Republican member of the state Senate’s environment committee, said the rule would have imposed “onerous new regulations on oil refiners and distributors of natural gas” and passed potentially billions of dollars in costs on to consumers.

Ericksen added he hoped the decision would “quell the enthusiasm of other agencies” to push legal boundaries, citing the Puget Sound Clean Air Agency’s decision to develop a low-carbon fuel regulation.

Frustrated by legislative inaction, Inslee had directed Ecology in 2015 to use executive authority under the Clean Air Act to regulate carbon emissions.

After a lengthy rule-making process, the state issued regulations in 2016 which would have targeted dozens of top emitters, from Skagit County oil refineries to Boeing’s Everett plant and Eastern Washington food processors. The rule required such facilities to cut their carbon footprint by an average of 1.7% a year — either by cleaning up their own facilities or paying for carbon-reduction projects off-site.

But the rule was quickly challenged in a lawsuit by business groups led by the Association of Washington Business. The association’s president, Kris Johnson, said in a statement he welcomed the court’s ruling and intends to work with lawmakers “to find a bipartisan solution” to reduce the state’s carbon emissions.

A trade association for paper mills said its members remain concerned about the effects of even a more limited version of the clean-air rule.

And Justice Wept

Environmentalist judge gives free pass to climate activists.  Where will this lead?

CGTN reports approvingly Climate activists win landmark case over Federer demo at Credit Suisse.  Excerpts in italics with my bolds.

Swiss climate protesters have won a landmark legal battle against investment bank Credit Suisse, which could transform the way that climate activism is prosecuted in Switzerland in future.

A judge ruled on Monday that the danger posed by climate change means activists from the climate group Breakfree were not guilty of trespassing when they occupied a branch of the Swiss investment bank two years ago to demonstrate against the financiers’ funding of fossil fuel projects.

In November 2019, a group of young people wearing tennis kits and wigs staged a tennis-themed sit-in at a Credit Suisse branch in Lausanne. Their goal was to convince Swiss tennis player Roger Federer to end his sponsorship deal with the investment bank and highlight what they said was Credit Suisse’s investments in industries which are seen as adding to climate change.

The group was charged with trespassing and slapped with a 21,600 Swiss franc fine ($22,200), but during their appeal hearing on Monday, Judge Philippe Colelough stated that the activists had acted proportionately and ruled that they did not have to pay the fine.

The judge agreed with the protesters that they had entered the bank in the face of an “imminent danger” from climate change.

Because of the insufficient measures taken to date in Switzerland, whether they be economic or political, the average warming will not diminish nor even stabilize, it will increase,” he said. Adding that: “In view of this, the tribunal considers that the imminence of danger is established.

“The act for which they were incriminated was a necessary and proportional means to achieve the goal they sought.”

The ruling, given in the Lausanne municipality of Renens, was greeted with cheers from the crowded court room. The Swiss state will cover the cost of the fine instead.

“I didn’t think it was possible,” said Beate Thalmann, one of those accused in the trial. “If Switzerland did this, then maybe we have a chance.”

Credit Suisse said last week that, while it respected the protesters’ cause, it considered the occupation of the bank’s property unacceptable.

“Combating global warming is important,” the financier said in a statement. “Credit Suisse respects freedom of expression as a fundamental democratic right. [However,] to protect its clients, employees and branches, it does not tolerate unlawful attacks on its branches, irrespective of the perpetrators and their motives.”

Since the decision from the court, there has been fresh Swiss climate activism.

On Tuesday, protesters dumped coal inside a branch of bank UBS in the same city of Lausanne, while carrying a banner reading: “We will leave when you quit fossil fuels.”

Bullying in the name of Climate is now sanctioned by the courts  How many more times will CO2 Hystericals be allowed to overthrow others’ rights? Thanks a lot Judge Colelough.

Footnote:

Given how much Switzerland depends on the financial industry, this is looking like the barbarians attacking the main gate.  That didn’t work out so well for Rome in 410:

ExxonKnew While NYAGsClueless

At Real Clear Energy is a good reflection on the collapsed climate legal crusade by three NYAGs Exxon and Evidence 101 by John S. Baker, Jr. Excerpts in italics with my bolds.

The problem for all these attorney generals is that states have no jurisdiction over climate change. Whatever one thinks about climate change, the climatic phenomena know no borders. If anything should be done about climate change, it is properly committed to the federal government.

Untroubled by these fundamental facts, current New York Attorney General Letitia James nevertheless charged ExxonMobil with fraud in misleading investors regarding the threat posed to the company by the costs allegedly associated with by climate change. New York State’s notoriously broad and vague Martin Act.

In the court of (elite) public opinion, ExxonMobil had already been found guilty. For three years prior to trial, the Attorney General’s office claimed that ExxonMobil was clearly engaged in fraud. The whole point of the “#Exxon Knew” media campaign was to convince the public that the fraud was unquestionable. The fraud claim was that, for decades, Exxon had knowingly and willingly mislead the public and that investors had relied on the allegedly false information.

Then, at trial, reality set in. After weeks of evidence, the States’ attorney suddenly and without explanation conceded during his closing argument –but only when pressed by the judge—that he had to drop the fraud claims. So, after screaming “fraud” for four years, the Attorney General’s office could produce absolutely no evidence of fraud.

That left two charges which were much less serious– but should have been much easier to prove — under the Martin Act. The two remaining charges did not require proof of any intentional act by ExxonMobil. Nevertheless, the State was unable to muster even this minimum level of proof.

Judge Ostrager wrote that regardless of ExxonMobil’s role with respect to climate change, this was a securities case– not a climate-change case. Indeed, the State’s attorney had insisted this was a securities case. The judge wrote that “the Attorney General failed to prove, a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.

The judge continued, saying that “the Attorney General produced no testimony either from any investor who claimed to have been misled by any disclosure, even though the Office of the Attorney General had previously represented it would call such individuals as trial witnesses.”

Of course, environmentalist groups are slamming the decision. They seem to think that because they disagree with a corporation’s policies and practices that their corporate opponents are evil and must be branded as criminals.

These critics include lawyers, at least some seem to think that the purity of their purpose justifies a finding of fraud against ExxonMobil despite the lack of evidence.

This verdict represents a devastating defeat for New York Attorney General James, as well as for the “#Exxon Knew” campaign. That media campaign may have energized Democratic officials; but in the courtroom, slogans cannot substitute for facts and the law.

It remains to be seen what effect the New York verdict will have on the Massachusetts case filed against ExxonMobil. The Massachusetts Attorney General is proceeding on a different theory, one focused on consumer protection. For environmental extremists, however, the end-game is the same. So, they are likely to redouble their public-opinion efforts in hopes of encouraging the Massachusetts Attorney General to go forward.

Nevertheless, trial lawyers in the Massachusetts Attorney General’s office are likely taking a hard look at their evidence and the judge assigned to the case. They undoubtedly appreciate support from the environmental movement, but they surely also want to avoid the extreme embarrassment of a second devastating loss to ExxonMobil.

Misguided idealism, environmental or otherwise, can become impatient with the basic principles of the rule of law. When that impatience is teamed with incompetent and/or ruthless litigators, the courts can become a forum for tyranny. Thankfully, “old fashioned” trial judges still look at whether or not the evidence presented supports the charge filed.

Footnote:  Today’s social discourse is poisoned by people believing that accusations are proof without any need for evidence. The media is rife with empty climate claims, while Kavenaugh and now Trump have been smeared with rumors, hearsay and innuendo.  Substituting feelings for facts is not the path to find the truth.

See Also Activist-Legal Complex Perverts Science

Dutch Judges Dictate Energy Policy

From Fortune Climate Change Litigation Enters a New Era as Court Rules That Emissions Reduction Is a Human Right Excerpts in italics with my bolds.

The Supreme Court of the Netherlands in The Hague on Friday delivered what may be the most unequivocal legal statement so far that governments are responsible for acting to address climate change.

In a closely-watched case that could have wide ramifications for litigation worldwide, the court ruled that the Dutch government must reduce emissions by at least 25% by the end of 2020 compared to 1990 levels, going beyond the EU-wide objective of 20%.

The ruling denied the Dutch government’s appeal of an earlier ruling in favor of the Urgenda Foundation, an environmental group that first filed the case in 2013 on behalf of a group of Dutch citizens who wanted the government to move faster to reduce emissions. The government has argued that a legal obligation to meet a specific target would limit its flexibility in determining how to reduce emissions.

The Supreme Court said on Friday that it based its judgement on the UN Climate Convention and the obligations of the state under the European Convention on Human Rights.

“There is a great deal of consensus in science and the international community about the urgent need to reduce greenhouse gas emissions by at least 25 percent by developed countries by the end of 2020,” the court said in its summary, translated from the Dutch. “[The Netherlands] has not explained why a lower reduction can be considered justified and can still lead in time to the final goal accepted by the State.”

In a brief summary read in English, the judge presiding over the court noted that European Human Rights Convention Articles 2 and 8—the right to life and the right to respect for private and family life—indicate that action on climate change falls under the umbrella of human rights protection.

“These articles entail the positive obligation for the Dutch state to take reasonable and appropriate measures to protect the residents of the Netherlands from the serious risk of a dangerous climate change, that would threaten the lives and wellbeing of many people in the Netherlands,” he said.

That obligation to apply the provisions of the Convention trumped the state’s argument that politicians—not the courts—are responsible for determining emissions reductions, the Court said.

“This could have significant consequences for governments’ freedom to make climate policy and in other areas,” the government said. The statement noted that the state was still committed to lowering emissions by 25% by 2020.

In 2018, emissions in the country were down 14.5% from 1990 levels, according to Statistics Netherlands.

The Urgenda case has gotten the furthest of all international litigation regarding climate change, according to Michael Gerrard, founder and director of the Sabin Center for Climate Change Law at Columbia University. Together with the law firm Arnold & Porter, the Center runs a database to track climate change litigation both internationally and in the U.S.

“There have been 1,442 climate change lawsuits worldwide. This is the strongest decision ever,” said Gerrard. “The Dutch Supreme Court has upheld the first court order anywhere directing a country to slash its greenhouse gas emissions. This decision may inspire even more cases in other countries.”

That was a sentiment that was echoed by Markus Gehring, an expert in sustainable development law at the University of Cambridge.

“The beauty is you only need one successful case,” he said. “There is [now] an expectation that climate litigation will multiply.”

See Also Judges Now Deciding US Energy Policy

Going Dutch: How Not to Cut Emissions

A primer for judges and others wanting to meddle with today’s energy system: Kelly’s Climate Clarity

Activist-Legal Complex Perverts Science

This article was published at the American Council on Science and Health Activist-Legal Complex Will Destroy American Science And Industry by Alex Berezow and Josh Bloom. Excerpts in italics with my bolds and added images.

American science and industry are under threat by this complex, known to be an unholy alliance of activists and trial lawyers who deploy various pseudoscientific tricks to score multibillion-dollar lawsuits against large companies. No industry is safe from these deceptions.

In his Farewell Address, President Eisenhower warned of the military-industrial complex, a partnership between the military and defense industry that was financially incentivized to promote war over peace. Today, we face a different threat – the “activist-legal complex,” which is responsible for scoring multibillion-dollar verdicts against some of America’s biggest companies.

One partner in this unholy alliance are activists who falsely claim that the food we eat, the water we drink, the air we breathe, and the products we use are all secretly killing us. They pervert scientific uncertainty to nefarious ends by magnifying hypothetical risks and downplaying relevant facts, such as level of exposure.

They exploit widespread misunderstanding of science and a general hatred of “corporations” – especially those that manufacture chemicals, drugs, or consumer products – to instill fear into the public.

The other partner is the legal industry, which relies on activist scaremongering to win jackpot verdicts. They identify sympathetic patients, often suffering from cancer or some other debilitating disease, and blame their maladies on a company with deep pockets. They buy television commercials to recruit more “victims” for the inevitable class-action lawsuit.

This formula works nearly every time, and the result is always the same: A giant bag of money. In this way, the activist-legal complex recently won a $4.7 billion lawsuit against Johnson & Johnson’s baby powder for causing ovarian cancer and a $2 billion lawsuit (subsequently reduced to merely $87 million) against Monsanto’s glyphosate for non-Hodgkin’s lymphoma.

There is no credible scientific evidence in support of either verdict.

But the absence of genuine scientific evidence is typically irrelevant in trials of this type. With the aid of flawed or cherry-picked toxicological and epidemiological studies – often published by activists in low-quality journals – the activist-legal complex can subvert science using well-established pseudoscientific tricks.

The first involves undermining long-held truths about toxicity. Thanks to Paracelsus, it has been known since the 16th Century that “the dose makes the poison.” Yet, the activist-legal complex promotes an alternate theory, namely that the mere presence of a chemical is an indicator of its potential harm. It is not.

Given advances in analytical instrumentation, it is now possible to detect almost any chemical in your body or in the environment at levels as minute as “one part per trillion,” which is roughly equivalent to a drop in an Olympic-sized swimming pool. There are very few, if any, chemicals on Earth that pose a health risk at such a low concentration.

But using the activist-legal complex’s doctrine – that we are constantly swimming in a sea of harmful chemicals – it is easy for lawyers to argue that any exposure to a potential carcinogen could be responsible for a cancer that develops decades later. Usually, the chemicals that are blamed have been used for decades and have been present in our bodies in tiny amounts all along without causing health concerns.

The second trick is to play on society’s belief that regulators and activists are righteous, unbiased people with no conflicts of interest. For example, jurors in the Monsanto glyphosate trial heard that the International Agency for Research on Cancer (IARC), a subsidiary of the World Health Organization, classified glyphosate as a probable human carcinogen. What they did not hear is that one of the key members of the IARC panel received £120,000 from trial lawyers who stood to benefit financially from the classification.

The third trick is to foment conspiracy theories, usually involving a few old, obscure documents or emails taken out of context. The activist-legal complex uses this tactic to convince jurors, already eager to “punish” Big Business, that the company was engaged in malfeasance.

Game, set, match. The only question left is how big the bag of money is going to be.

Where will the activist-legal complex strike next? It could be anywhere. Maybe there will be a class action lawsuit against Coca-Cola for obesity in America. Perhaps lawyers will go after Facebook for making its social media platform too addictive. Or maybe Apple’s iPhone will be blamed for causing car accidents due to distracted driving.

As long as a company has a sufficiently large bank account, quite literally anything is possible. No industry is safe from the activist-legal complex.

Postscript:

The article points to jackpot justice in general.  A number of posts here have discussed how the same dynamic is at work in Climate Litigation (link is to posts so tagged)

NYAG James Exxon Case Goes Down in Flames

Climate Litigation Watch is reporting the ruling by Judge Barry Ostrager ending the case brought by NYAG Leticia James against ExxonMobil.  The loss could hardly be more complete.  The full text of the ruling is here.  The juicy bits are excerpted in italics below with my bolds.

Supreme Court of New York, New York County, the Honorable Barry Ostrager presiding.

Decision After Trial

Nothing in this opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products. ExxonMobil does not dispute either that its operations produce greenhouse gases or that greenhouse gases contribute to climate change, But ExxonMobil is in the business of producing energy, and this is a securities fraud case, not a climate change case. Applying the applicable legal standards, the Court finds that the Office of the Attorney General failed to prove by a preponderance of the evidence that ExxonMobil made any material misrepresentations that “would have been viewed by a reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indusiries, Ine. v, Northway, Inc,, 426 U.S. 438 (1976).

The Office Attorney General is Not Entitled to Any Relief.

The Court also finds that the Office of the Attorney General is not entitled to any monetary damages or injunctive relief because the Office of the Attorney General did not prevail on its first and second causes of action. If the Court had reached the issues of damages, the Court would have found that the Office of the Attorney General failed to prove any damages by a preponderance of the evidence for the reasons stated infra.

The Office of the Attorney General had the burden to prove that ExxonMobil made misrepresentations and that ExxonMobil investors would have considered any alleged misrepresentations important in light of the “total mix of information” available to them. TSC Industries, Inc, v. Northway, Inc., 426 U.S. 438, 449 (1976). The Court finds there was no proof offered at trial that established material misrepresentations or omissions contained in any of ExxonMobil’s public disclosures that satisfy the applicable legal standard. The total mix of information available to ExxonMobil investors during the relevant period included an annual, publicly-filed report called the Outlook for Energy, the two March 2014 Reports, ExxonMobil’s Form 10-Ks, ExxonMobil’s annual Corporate Citizenship Reports, and a host of other publicly available information that was not the subject of testimony at trial (including ExxonMobil’s Annual Shareholder reports).

Significantly, there is no allegation in this case, and there was no proof adduced at trial, that anything ExxonMobil is alleged to have done or failed to have done affected ExxonMobil’s balance sheet, income statement, or any other financial disclosure. More importantly, the Office of the Attorney General’s case is largely focused on projections of proxy costs and GHG costs in 2030 and 2040. No reasonable investor during the period from 2013 to 2016 would make investment decisions based on speculative assumptions of costs that may be incurred 20+ or 30+ years in the future with respect to unidentified future projects. See Singh v. Cigna Corp., 918

At bottom, the case presented by the Office of the Attorney General is largely predicated upon the proposition, which this Court rejects, that during the period of time covered by the Complaint, ExxonMobil’s disclosures led the public to believe that its GHG cost assumptions for future projects had the same values assigned to its proxy cost of carbon. The existence of ExxonMobil’s DataGuide with separate sections and appendices for proxy costs and GHG costs is corroborative of ExxonMobil’s assertion that proxy cost of carbon and GHG costs are different metrics, a proposition of the Office of the Attorney General conceded before any testimony was presented at trial. Explicit statements in various publications confirmed this to be the case.

What the evidence at trial revealed is that ExxonMobil executives and employees were uniformly committed to rigorously discharging their duties in the most comprehensive and meticulous manner possible. More than half of the current and former ExxonMobil executives and employees who testified at trial have worked for ExxonMobil for the entirety of their careers. The testimony of these witnesses demonstrated that ExxonMobil has a culture of disciplined analysis, planning, accounting, and reporting.

To support its theory that the alleged misstatements in the March 31, 2014 publications were material, the Office of the Attorney General offered the expert testimony and expert report of Dr. Eli Bartov who concluded that there was inflation on the stock price of ExxonMobil from April 1, 2014 to June 1, 2017. Tr. 1149:25-1150:4. Dr. Bartov posited that the inflation period began after the alleged affirmative misrepresentations contained in the two March 31, 2014 publications. Significantly, the Office of the Attorney General offered no proof that there was any increase in the stock price of ExxonMobil immediately following the publication of Managing the Risk and Energy and Climate and Dr. Bartov perplexingly testified that he did not conduct an analysis of whether or not ExxonMobil’s stock increased as a result of the alleged misrepresentations in the March 31, 2014 publications “because it was completely unrelated to my analysis.” Tr. 1233:8-13. By contrast, ExxonMobil’s expert, Dr. Frank Allen Ferrell,” determined that there was no increase in ExxonMobil stock on April 1, 2014. Tr. 1967. In short, there is no evidence that any misleading statements in these publications inflated the price of ExxonMobil stock. See DX711 ¶ 15 Expert Report of Allen Ferrell.

None of Dr. Bartov’s corrective disclosures contain any statements from ExxonMobil acknowledging a misstatement or correcting a previous disclosure. Tr. 1208. They all pertain to regulatory investigations of ExxonMobil announced in the mainstream press. In short, the news of the California Attorney General’s reported investigation is precisely the kind of news that the Office of Attorney General’s witness Rodger Reed characterized as “headline risk.” Additionally, as ExxonMobil’s highly credentialed expert, Dr. Ferrell, testified, there is something circular about claiming that a stock drop precipitated by the announcement of an investigation constitutes evidence of wrongdoing. Indeed, by Dr. Bartov’s reasoning, any decline in the value of ExxonMobil stock after the June 2, 2017 filing of the Office of the Attorney General’s complaint is the result of an ill-conceived initiative of the Office of the Attorney General.

V. Conclusion

In sum, the Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor. The Office of the Attorney General produced no testimony either from any investor who claimed to have been misled by any disclosure, even though the Office of the Attorney General had previously represented it would call such individuals as trial witnesses. ExxonMobil disclosed its use of both the proxy cost and the GHG metrics no later than 2014. Perhaps, the 2014 paragraph in Managing the Risks which indicated that ExxonMobil applied a GHG cost “where appropriate” and which was the subject of questioning of virtually every witness in the case could have been written in bold type, but the sentence was consistent with other ExxonMobil disclosures and ExxonMobil’s business practices. The publication of Managing the Risks had no market impact and was, as far as the evidence adduced at trial reflected, essentially ignored by the investment community.

The testimony of all the present and former ExxonMobil employees who were called either as adverse witnesses by the Office of the Attorney General or as defense witnesses by ExxonMobil was uniformly favorable to ExxonMobil, and the Court credited the testimony of each of those witnesses. The testimony of the expert witnesses called by the Office of the Attorney General was eviscerated on cross-examination and by ExxonMobil’s expert witnesses. Confronted with the disclosures in ExxonMobil’s Corporate Citizenship Reports, Form 10-K’s, and ExxonMobil’s annually published Outlook, the Office of the Attorney General failed to prove by a preponderance of the evidence that any alleged misrepresentation in Managing the Risks and Energy and Climate (or any other disclosure by ExxonMobil) was false and material in the context of the total mix of information available to the public.

For all of these reasons, the claims asserted by the Office of the Attorney General under the Martin Act and Executive Law § 63(12) are denied, and the action is dismissed with prejudice.
Dated: December 10, 2019
Barry R. Ostrager, JSC

Background: New York AG’s Disgraceful Exxon Trial

Justice Alito Finds Chinks in Mann’s Legal Armor

US Supreme Justice Alito dissented from the majority opinion leaving alone a lower court ruling to allow Mann’s free speech lawsuit to proceed (after seven years).  Background on the case history is later on.  This post provides Alito’s opinion and perspective why the Supreme Court should take up the case, if not now then later after an outcome is reached.  The text comes from the US Supreme Court Orders November 25, 2019.  Excerpts in italics with my bolds.

SUPREME COURT OF THE UNITED STATES NATIONAL REVIEW, INC. 18–1451 v. MICHAEL E. MANN COMPETITIVE ENTERPRISE INSTITUTE, ET AL. 18–1477 v. MICHAEL E. MANN ON PETITIONS FOR WRITS OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 18–1451 and 18–1477. Decided November 25, 2019 The motions of Southeastern Legal Foundation for leave to file briefs as amicus curiae are granted. The petitions for writs of certiorari are denied.

JUSTICE ALITO, dissenting from the denial of certiorari. The petition in this case presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day. If the Court is serious about protecting freedom of expression, we should grant review.

I.  Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this work, Mann and two colleagues produced what has been dubbed the “hockey stick” graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after e-mails from the University of East Anglia’s Climate Research Unit were made public, the quality of Mann’s work was called into question in some quarters.

Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg’s and Steyn’s comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, “misconduct,” “wrongdoing,” and the “manipulation” and “tortur[e]” of data. App. to Pet. for Cert. in No. 18–1451, pp. 94a, 98a (App.).

Mann responded by filing a defamation suit in the District of Columbia’s Superior Court. Petitioners moved for dismissal, relying in part on the District’s anti-SLAPP statute, D. C. Code §16–5502(b) (2012), which requires dismissal of a defamation claim if it is based on speech made “in furtherance of the right of advocacy on issues of public interest” and the plaintiff cannot show that the claim is likely to succeed on the merits. The Superior Court denied the motion, and the D. C. Court of Appeals affirmed. 150 A. 3d 1213, 1247, 1249 (2016). The petition now before us presents two questions:

(1) whether a court or jury must determine if a factual connotation is “provably false” and

(2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy. Both questions merit our review.

II.  The first question is important and has divided the lower courts. See 1 R. Smolla, Law of Defamation §§6.61, 6.62, 6.63 (2d ed. 2019); 1 R. Sack, Defamation §4:3.7 (5th ed. 2019). Federal courts have held that “[w]hether a communication is actionable because it contained a provably false statement of fact is a question of law.” Chambers v. Travelers Cos., 668 F. 3d 559, 564 (CA8 2012); see also, e.g., Madison v. Frazier, 539 F. 3d 646, 654 (CA7 2008); Gray v. St. Martin’s Press, Inc., 221 F. 3d 243, 248 (CA1 2000); Moldea v. New York Times Co., 15 F. 3d 1137, 1142 (CADC 1994). Some state courts, on the other hand, have held that “it is for the jury to determine whether an ordinary reader would have understood [expression] as a factual assertion.” Good Govt. Group of Seal Beach, Inc. v. Superior Ct. of Los Angeles Cty., 22 Cal. 3d 672, 682, 586 P. 2d 572, 576 (1978); see also, e.g., Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 734, 500 N. E. 2d 794, 797 (2014); Caron v. Bangor Publishing Co., 470 A. 2d 782, 784 (Me. 1984). In this case, it appears that the D. C. Court of Appeals has joined the latter camp, leaving it for a jury to decide whether it can be proved as a matter of fact that Mann improperly treated the data in question. See App. 29a, 52a–53a, 65a, n. 46.

Respondent does not deny the existence of a conflict in the decisions of the lower courts. See Brief in Opposition at 30. Nor does he dispute the importance of the question. Instead, he argues that the D. C. Court of Appeals followed the federal rule,* but the D. C. Court of Appeals’ opinion repeatedly stated otherwise. See App. 29a (asking what “a jury properly instructed on the applicable legal and constitutional standards could reasonably find”); id., at 52a–53a (repeatedly describing what a jury “could find”); id., at 65a, —————— *Respondent’s lead argument in opposition to certiorari is that we lack jurisdiction under 28 U. S. C. §1257, see Brief in Opposition 27–30, but petitioners have a strong argument that we have jurisdiction under Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). If the Court has doubts on this score, the question of jurisdiction can be considered together with the merits. 4 NATIONAL REVIEW, INC. v. MANN ALITO, J., dissenting n. 46 (stating that in a case like this one, involving what it characterized as a claim of “‘ordinary libel,’” “the standard is ‘whether a reasonable jury could find that the challenged statements were false’” (emphasis in original)). This last statement is especially revealing because it appears in a footnote that was revised in response to petitioners’ petition for rehearing, see id., at 1a, n. *, which disputed the correctness of the standard that asks what a jury could find, see id., at 65a, n. 46. We therefore have before us a decision on an indisputably important question of constitutional law on which there is an acknowledged split in the decisions of the lower courts. A question of this nature deserves a place on our docket.

This question—whether the courts or juries should decide whether an allegedly defamatory statement can be shown to be untrue—is delicate and sensitive and has serious implications for the right to freedom of expression. And two factors make the question especially important in the present case.

First, the question that the jury will apparently be asked to decide—whether petitioners’ assertions about Mann’s use of scientific data can be shown to be factually false—is highly technical. Whether an academic’s use and presentation of data falls within the range deemed reasonable by those in the field is not an easy matter for lay jurors to assess.

Second, the controversial nature of the whole subject of climate change exacerbates the risk that the jurors’ determination will be colored by their preconceptions on the matter. When allegedly defamatory speech concerns a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties. And when, as is often the case, allegedly defamatory speech is disseminated nationally, a plaintiff may be able to bring suit in whichever jurisdiction seems likely to have the highest percentage of jurors who are sympathetic to the plaintiff ’s point of view.  See Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 781 (1984) (regular circulation of magazines in forum State sufficient to support jurisdiction in defamation action). For these reasons, the first question presented in the petition calls out for review.

III.   The second question may be even more important. The constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues. See Snyder v. Phelps, 562 U. S. 443, 451–452 (2011); New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). If citizens cannot speak freely and without fear about the most important issues of the day, real selfgovernment is not possible. See Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of selfgovernment”). To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views.

At issue in this case is the line between, on the one hand, a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day and, on the other, a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false. Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990). Under Milkovich, statements in the first category are protected by the First Amendment, but those in the latter are not. Id., at 19–20, 22. And Milkovich provided examples of statements that fall into each category. As explained by the Court, a defamation claim could be asserted based on the statement: “In my opinion John Jones is a liar.” Id., at 18. 6 NATIONAL REVIEW, INC. v. MANN ALITO, J., dissenting This statement, the Court noted, implied knowledge that Jones had made particular factual statements that could be shown to be false. Ibid. As for a statement that could not provide the basis for a valid defamation claim, the Court gave this example: “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.” Id., at 20.

When an allegedly defamatory statement is couched as an expression of opinion on the quality of a work of scholarship relating to an issue of public concern, on which side of the Milkovich line does it fall? This is a very important question that would greatly benefit from clarification by this Court. Although Milkovich asserted that its hypothetical statement about the teachings of Marx and Lenin would not be actionable, it did not explain precisely why this was so. Was it the lack of specificity or the nature of statements about economic theories or all scholarly theories or perhaps something else?

In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark “F-U-C-T.” Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called “The Slants” had the right to register its name.

In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man’s false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.

If the speech in all these cases had been held to be unprotected, our Nation’s system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.

This is just such a case. Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

I do not suggest that speech that touches on an important and controversial issue is always immune from challenge under state defamation law, and I express no opinion on whether the speech at issue in this case is or is not entitled to First Amendment protection. But the standard to be applied in a case like this is immensely important. Political debate frequently involves claims and counterclaims about the validity of academic studies, and today it is something of an understatement to say that our public discourse is often “uninhibited, robust, and wide-open.” New York Times Co., 376 U. S., at 270.

I recognize that the decision now before us is interlocutory and that the case may be reviewed later if the ultimate outcome below is adverse to petitioners. But requiring a free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden. See Cox 8 NATIONAL REVIEW, INC. v. MANN ALITO, J., dissenting Broadcasting Corp. v. Cohn, 420 U. S. 469, 485 (1975) (observing that “there should be no trial at all” if the statute at issue offended the First Amendment). A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate. For these reasons, I would grant the petition in this case, and I respectfully dissent from the denial of certiorari

From Previous Post: Courts Shielding MIchael Mann from Climate Exposure

An editorial from National Review summarizing how the courts function as Michael Mann’s protective shield  NR Won’t Be Cowed by a Litigious Michael Mann  December 21, 2018.  Excerpts below with my bolds.

At this rate, Jarndyce v. Jarndyce will be replaced in the Western canon as the go-to example of the court case that never ends by National Review, Inc. v. Michael E. Mann, which is now well into its seventh year as a live proposition and, alas, showing no end in sight.

For those who have forgotten, this is the 2012 case in which Mann sued National Review for libel over a 270-word blog post that criticized his infamous “hockey stick” graph portraying global warming, in response to which National Review refused to acquiesce to what was, and remains, nothing less than an attempt to use the law to bully the press into submission. That this case is both frivolous in nature and clear-cut in National Review’s favor seems to be obvious to everyone except for Michael Mann and the D.C. Court of Appeals. Indeed, in the years since Mann made his play, National Review has been joined by a veritable Who’s Who of American media organizations — including, but not limited to, the ACLU, the National Press Club, Comcast, the Cato Institute, the Washington Post, Time Inc., Reporters Committee for Freedom of the Press, and the Electronic Frontier Foundation, all of which have filed amicus briefs on NR’s side. Tellingly, National Review has also been supported by the City of Washington, D.C., in which jurisdiction the case was brought. And yet, inexplicably, the D.C. Court of Appeals continues to drag its feet.

This is extraordinary, especially given that at stake here is the integrity of the First Amendment. It is extraordinary foremost because National Review’s case is both straightforward and strong: that it is not, and it has never been, the role of the courts to settle literary or scientific disputes. But it is also extraordinary because National Review’s case is being heard under rules laid out by Washington, D.C.’s robust “anti-SLAPP” law, the explicit purpose of which is to make it more difficult to harass people and organizations with frivolous libel threats and thereby to protect a sturdy culture of free speech. How, we ask, can this be reconciled with a case such as ours, in which, among other inexplicable delays, the court has taken two years to add a single footnote to the records (and modify another)? That a slam-dunk case that is being examined under an expedited process should have yielded so many years of expensive radio static is a genuine national disgrace, and should be widely regarded as such.

National Review neither encourages nor enjoys protracted, expensive, tedious litigation. Indeed, it is our resolute view that questions such as these must be resolved outside of the courtroom. But we will be cowed neither by pressure nor by the passage of time, and we are proud of our role as a champion of the First Amendment. To those who would abridge, undermine, or attempt to circumvent that bulwark of free expression, our response is, as it ever was: Get Lost.

See also:  Rise and Fall of the Modern Warming Spike

Judges Now Deciding US Energy Policy

Petroleum Engineer or Federal Judge?

A previous post World Energy Policies A Minefield  reported on mistaken climate policies and their threat to our energy system.  Adding to the danger are actions by courts meddling in energy affairs on behalf of anti-fossil fuel activists.  Nicholas Kusnetz writes at alarmist website Inside Climate News U.S. Suspends More Oil and Gas Leases Over What Could Be a Widespread Problem. Excerpts in italics with my bolds.

Fossil Fuel leases totaling hundreds of thousands of acres have been suspended as courts rule against the BLM for ignoring climate impact. 

The federal Bureau of Land Management’s (BLM) Utah office in September voluntarily suspended 130 oil and gas leases after advocacy groups sued, arguing that BLM hadn’t adequately assessed the greenhouse gas emissions associated with drilling and extraction on those leases as required by law.

Nearly a quarter of the nation’s carbon dioxide emissions come from fossil fuels developed on federal lands, according to a government report. Credit: Bureau of Land Management.

The move was unusual because BLM suspended the leases on its own, without waiting for a court to rule.

Some environmental advocates say it could indicate a larger problem for the bureau.

“It is potentially a BLM-wide issue,” said Jayni Hein, natural resources director at the Institute for Policy Integrity at NYU School of Law, which has been involved in similar litigation in other states. “It could have the effect of suspending even more leases across the West, and not just for oil and gas, for coal as well.”

Officials in Utah had already pulled back several other lease sales earlier this year. In effect, BLM appears to be trying to get ahead of potential court rulings, advocates say.

A series of court rulings have established that BLM must conduct a thorough analysis of the climate impacts of drilling before it allows development in order to comply with the National Environmental Policy Act (NEPA).

In the latest ruling, a federal district court in Washington, D.C., in March ordered the bureau to redo its environmental analysis for a slate of leases in Wyoming to better assess climate impacts. In response, BLM suspended the Wyoming leases, as well as leases in Utah and Colorado that were included in the lawsuit but not directly addressed by the ruling.

The new Utah suspensions cover a different set of leases, including many sold last year. In letters sent in September to energy companies that had bought the leases, BLM said it was suspending them “based on the parallels” between the lawsuit over them and the case that resulted in the March ruling in Washington, D.C.

All told, nearly 1 million acres may now be suspended across the West, said Rebecca Fischer, an attorney with WildEarth Guardians, which filed the lawsuit in the Washington, D.C., circuit, including more than 460,000 acres covered by that lawsuit and some 300,000 acres that Utah’s BLM office has suspended since the March ruling.

Environmental advocates say the Trump administration is unlikely to cancel the leases. In Wyoming, BLM issued a new analysis soon after the Washington, D.C., court’s decision in March, arguing that there were no significant climate impacts. Fischer’s group has challenged that new assessment, saying that it too fails to meet the legal requirements. The court has yet to rule on the latest challenge.

Fischer said the lawsuits are part of a larger strategy by advocacy groups to try to block fossil fuel development that they say is incompatible with the need to rapidly cut greenhouse gas emissions to slow climate change. They say the bureau has the authority to deny leases based on their climate impacts, and those climate impacts would become apparent if it conducted a thorough analysis.

“That is our ultimate goal,” she said. “That we can start to keep these oil and gas leases in the ground and start to transition away from dirty fossil fuels.”

FootnoteAttorney General William Barr addressed the intrusion of judges upon Presidential authority as part of his recent speech on the Constitution’s approach to executive power. (here). Some pertinent excerpts in italics with my bolds.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority. . .Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. checks-and-balances

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. One way courts have effectively done this is by expanding both the scope and the intensity of judicial review.

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process. They require what we used to call prudential judgment. They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the “precautionary principle.” This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry.

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. This outlook now seems to have gone by the boards. Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit.

IT is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda.