Advance Briefing for Glasgow COP 2021

 

Presently the next climate Conference of Parties is scheduled for Glasgow this November, Covid allowing.  (People used to say “God willing”, or “Weather permitting”, but nowadays it’s a virus in charge.)  Actually, climate hysteria is like a seasonal sickness.  Each year a contagion of anxiety and fear is created by disinformation going viral in both legacy and social media in the run up to the autumnal COP (postponed last year due to pandemic travel restrictions).  Now that climatists have put themselves at the controls of the formidable US federal government, we can expect the public will be hugely hosed with alarms over the next few months.  Before the distress signals go full tilt, individuals need to inoculate themselves against the false claims, in order to build some herd immunity against the nonsense the media will promulgate. This post is offered as a means to that end.

Media Climate Hype is a Cover Up

Back in 2015 in the run up to Paris COP, French mathematicians published a thorough critique of the raison d’etre of the whole crusade. They said:

Fighting Global Warming is Absurd, Costly and Pointless.

  • Absurd because of no reliable evidence that anything unusual is happening in our climate.
  • Costly because trillions of dollars are wasted on immature, inefficient technologies that serve only to make cheap, reliable energy expensive and intermittent.
  • Pointless because we do not control the weather anyway.

The prestigious Société de Calcul Mathématique (Society for Mathematical Calculation) issued a detailed 195-page White Paper presenting a blistering point-by-point critique of the key dogmas of global warming. The synopsis with links to the entire document is at COP Briefing for Realists

Even without attending to their documentation, you can tell they are right because all the media climate hype is concentrated against those three points.

Finding: Nothing unusual is happening with our weather and climate.
Hype: Every metric or weather event is “unprecedented,” or “worse than we thought.”

Finding: Proposed solutions will cost many trillions of dollars for little effect or benefit.
Hype: Zero carbon will lead the world to do the right thing.  Anyway, the planet must be saved at any cost.

Finding: Nature operates without caring what humans do or think.
Hype: Any destructive natural event is blamed on humans burning fossil fuels.

How the Media Throws Up Flak to Defend False Suppositions

The Absurd Media:  Climate is Dangerous Today, Yesterday It was Ideal.

Billions of dollars have been spent researching any and all negative effects from a warming world: Everything from Acne to Zika virus.  A recent Climate Report repeats the usual litany of calamities to be feared and avoided by submitting to IPCC demands. The evidence does not support these claims. An example:

 It is scientifically established that human activities produce GHG emissions, which accumulate in the atmosphere and the oceans, resulting in warming of Earth’s surface and the oceans, acidification of the oceans, increased variability of climate, with a higher incidence of extreme weather events, and other changes in the climate.

Moreover, leading experts believe that there is already more than enough excess heat in the climate system to do severe damage and that 2C of warming would have very significant adverse effects, including resulting in multi-meter sea level rise.

Experts have observed an increased incidence of climate-related extreme weather events, including increased frequency and intensity of extreme heat and heavy precipitation events and more severe droughts and associated heatwaves. Experts have also observed an increased incidence of large forest fires; and reduced snowpack affecting water resources in the western U.S. The most recent National Climate Assessment projects these climate impacts will continue to worsen in the future as global temperatures increase.

Alarming Weather and Wildfires

But: Weather is not more extreme.


And Wildfires were worse in the past.
But: Sea Level Rise is not accelerating.


Litany of Changes

Seven of the ten hottest years on record have occurred within the last decade; wildfires are at an all-time high, while Arctic Sea ice is rapidly diminishing.

We are seeing one-in-a-thousand-year floods with astonishing frequency.

When it rains really hard, it’s harder than ever.

We’re seeing glaciers melting, sea level rising.

The length and the intensity of heatwaves has gone up dramatically.

Plants and trees are flowering earlier in the year. Birds are moving polewards.

We’re seeing more intense storms.

But: Arctic Ice has not declined since 2007.

But: All of these are within the range of past variability.

In fact our climate is remarkably stable, compared to the range of daily temperatures during a year where I live.

And many aspects follow quasi-60 year cycles.

The Impractical Media:  Money is No Object in Saving the Planet.

Here it is blithely assumed that the court can rule the seas to stop rising, heat waves to cease, and Arctic ice to grow (though why we would want that is debatable).  All this will be achieved by leaving fossil fuels in the ground and powering civilization with windmills and solar panels.  While admitting that our way of life depends on fossil fuels, they ignore the inadequacy of renewable energy sources at their present immaturity.

 

An Example:
The choice between incurring manageable costs now and the incalculable, perhaps even irreparable, burden Youth Plaintiffs and Affected Children will face if Defendants fail to rapidly transition to a non-fossil fuel economy is clear. While the full costs of the climate damages that would result from maintaining a fossil fuel-based economy may be incalculable, there is already ample evidence concerning the lower bound of such costs, and with these minimum estimates, it is already clear that the cost of transitioning to a low/no carbon economy are far less than the benefits of such a transition. No rational calculus could come to an alternative conclusion. Defendants must act with all deliberate speed and immediately cease the subsidization of fossil fuels and any new fossil fuel projects, and implement policies to rapidly transition the U.S. economy away from fossil fuels.

But CO2 relation to Temperature is Inconsistent.

But: The planet is greener because of rising CO2.

But: Modern nations (G20) depend on fossil fuels for nearly 90% of their energy.

But: Renewables are not ready for prime time.

People need to know that adding renewables to an electrical grid presents both technical and economic challenges.  Experience shows that adding intermittent power more than 10% of the baseload makes precarious the reliability of the supply.  South Australia is demonstrating this with a series of blackouts when the grid cannot be balanced.  Germany got to a higher % by dumping its excess renewable generation onto neighboring countries until the EU finally woke up and stopped them. Texas got up to 29% by dumping onto neighboring states, and some like Georgia are having problems.

But more dangerous is the way renewables destroy the economics of electrical power.  Seasoned energy analyst Gail Tverberg writes:

In fact, I have come to the rather astounding conclusion that even if wind turbines and solar PV could be built at zero cost, it would not make sense to continue to add them to the electric grid in the absence of very much better and cheaper electricity storage than we have today. There are too many costs outside building the devices themselves. It is these secondary costs that are problematic. Also, the presence of intermittent electricity disrupts competitive prices, leading to electricity prices that are far too low for other electricity providers, including those providing electricity using nuclear or natural gas. The tiny contribution of wind and solar to grid electricity cannot make up for the loss of more traditional electricity sources due to low prices.

These issues are discussed in more detail in the post Climateers Tilting at Windmills

The Irrational Media:  Whatever Happens in Nature is Our Fault.

An Example:

Other potential examples include agricultural losses. Whether or not insurance
reimburses farmers for their crops, there can be food shortages that lead to higher food
prices (that will be borne by consumers, that is, Youth Plaintiffs and Affected Children).
There is a further risk that as our climate and land use pattern changes, disease vectors
may also move (e.g., diseases formerly only in tropical climates move northward).36 This
could lead to material increases in public health costs

But: Actual climate zones are local and regional in scope, and they show little boundary change.

But: Ice cores show that it was warmer in the past, not due to humans.

The hype is produced by computer programs designed to frighten and distract children and the uninformed.  For example, there was mention above of “multi-meter” sea level rise.  It is all done with computer models.  For example, below is San Francisco.  More at USCS Warnings of Coastal Floodings

In addition, there is no mention that GCMs projections are running about twice as hot as observations.

Omitted is the fact GCMs correctly replicate tropospheric temperature observations only when CO2 warming is turned off.

Figure 5. Simplification of IPCC AR5 shown above in Fig. 4. The colored lines represent the range of results for the models and observations. The trends here represent trends at different levels of the tropical atmosphere from the surface up to 50,000 ft. The gray lines are the bounds for the range of observations, the blue for the range of IPCC model results without extra GHGs and the red for IPCC model results with extra GHGs.The key point displayed is the lack of overlap between the GHG model results (red) and the observations (gray). The nonGHG model runs (blue) overlap the observations almost completely.

In the effort to proclaim scientific certainty, neither the media nor IPCC discuss the lack of warming since the 1998 El Nino, despite two additional El Ninos in 2010 and 2016.

Further they exclude comparisons between fossil fuel consumption and temperature changes. The legal methodology for discerning causation regarding work environments or medicine side effects insists that the correlation be strong and consistent over time, and there be no confounding additional factors. As long as there is another equally or more likely explanation for a set of facts, the claimed causation is unproven. Such is the null hypothesis in legal terms: Things happen for many reasons unless you can prove one reason is dominant.

Finally, advocates and IPCC are picking on the wrong molecule. The climate is controlled not by CO2 but by H20. Oceans make climate through the massive movement of energy involved in water’s phase changes from solid to liquid to gas and back again. From those heat transfers come all that we call weather and climate: Clouds, Snow, Rain, Winds, and Storms.

Esteemed climate scientist Richard Lindzen ended a very fine recent presentation with this description of the climate system:

I haven’t spent much time on the details of the science, but there is one thing that should spark skepticism in any intelligent reader. The system we are looking at consists in two turbulent fluids interacting with each other. They are on a rotating planet that is differentially heated by the sun. A vital constituent of the atmospheric component is water in the liquid, solid and vapor phases, and the changes in phase have vast energetic ramifications. The energy budget of this system involves the absorption and reemission of about 200 watts per square meter. Doubling CO2 involves a 2% perturbation to this budget. So do minor changes in clouds and other features, and such changes are common. In this complex multifactor system, what is the likelihood of the climate (which, itself, consists in many variables and not just globally averaged temperature anomaly) is controlled by this 2% perturbation in a single variable? Believing this is pretty close to believing in magic. Instead, you are told that it is believing in ‘science.’ Such a claim should be a tip-off that something is amiss. After all, science is a mode of inquiry rather than a belief structure.

Summary:  From this we learn three things:

Climate warms and cools without any help from humans.

Warming is good and cooling is bad.

The hypothetical warming from CO2 would be a good thing.

 

Latest Court Ruling re EPA and CO2

There is the story of the court’s decision, and the back story told by one judge dissenting partly from the other two on the panel.  The overview comes from courthousenews DC Circuit Rejects Trump Rollback of Power Plant Emission Rules.  Excerpts in italics with my bolds.

Overview of Ruling on Affordable Clean Energy Rule

The federal appeals court’s 182-page opinion released Tuesday was unsigned, written by a mostly unanimous three-judge panel. U.S. Circuit Judge Justin Walker, a Trump appointee who joined the court just a month before the case was heard, penned only a partial dissent.

The panel found the outgoing president’s Affordable Clean Energy rule, adopted in 2019 as part of Trump’s effort to roll back what he considered anti-business regulations, is based on an “erroneous legal premise.” The ACE rule dropped all statewide emissions caps, giving state regulators greater autonomy and more time to reduce pollution.

The court held Tuesday that there is “no basis—grammatical, contextual, or otherwise—for the EPA’s assertion” about source-specific language in federal law that it claims limits its oversight of fossil fuel power sources.

While the ruling was welcomed by health and environmental groups, it only returns things to the status quo.  Litigation tied up Obama’s Clean Power Plan shortly after it was passed and it never took effect thanks to a Supreme Court stay in 2016.

The Trump effort to roll it back started in 2017 before culminating with the ACE rule in 2019. Now the ACE rule too will be bound up in legal purgatory, if not scrapped entirely by the incoming Biden administration.

Walker was joined on the panel by U.S. Circuit Judges Cornelia Pillard and Patricia Millett, both Obama appointees.  While the Trump appointee mostly concurred with his colleagues, Walker filed a partial dissent saying he took issue with both Obama and Trump’s regulatory efforts.

The Back Story–How We Got Here

Judge Walker wrote an interesting essay on the twists and turns with climate change, the EPA and CO2 emissions.  His statement is at the end of the court document (here).  Excerpts in italics with my bolds.

WALKER, Circuit Judge, concurring in part, concurring in the judgment in part, and dissenting in part: This case concerns two rules related to climate change. The EPA promulgated both rules under § 111 of the Clean Air Act.1

A major milestone in climate regulation, the first rule set caps for carbon emissions. Those caps would have likely forced shifts in power generation from higher-polluting energy sources (such as coal-fired power plants) to lower-emitting sources (such as natural gas or renewable energy sources). 2 That policy is called generation shifting.

Hardly any party in this case makes a serious and sustained argument that § 111 includes a clear statement unambiguously authorizing the EPA to consider off-site solutions like generation shifting. And because the rule implicates “decisions of vast economic and political significance,” Congress’s failure to clearly authorize the rule means the EPA lacked the authority to promulgate it.

The second rule repealed the first and partially replaced it with different regulations of coal-fired power plants. Dozens of parties have challenged both the repeal and the provisions replacing it.

In my view, the EPA was required to repeal the first rule and wrong to replace it with provisions promulgated under § 111. That’s because coal-fired power plants are already regulated under § 112, and § 111 excludes from its scope any power plants regulated under § 112. Thus, the EPA has no authority to regulate coal-fired power plants under§ 111.

Background Concerning EPA and Carbon Dioxide

In its clearest provisions, the Clean Air Act evinces a political consensus. For example, according to Massachusetts v. EPA, carbon dioxide is clearly a pollutant, and the Act’s § 202 unambiguously directs the EPA to curb pollution from new cars.

But for every carbon question answered in that case, many more were not even presented. For example, does the Clean Air Act force the electric-power industry to shift from fossil fuels to renewable resources? If so, by how much? And who will pay for it? Even if Congress could delegate those decisions, Massachusetts v. EPA does not say where in the Clean Air Act Congress clearly did so.

In 2009, Congress tried to supply that clarity through new legislation.

The House succeeded.
The President supported it.
But that effort stalled in the Senate.

Since climate change is real, man-made, and important, Congress’s failure to act was, to many, a disappointment. But the process worked as it was designed. In general, Senators from small states blocked legislation they viewed as adverse to their voters. And because small states have outsized influence in the Senate, no bill arrived on the President’s desk.

Nor have dozens of other climate-related bills introduced since then. So President Obama ordered the EPA to do what Congress wouldn’t. In 2015, after “years of unprecedented outreach and public engagement” — including 4.3 million public comments (about 4.25 million more than in Massachusetts v.EPA) — the EPA promulgated a rule aimed at “leading global efforts to address climate change.”

Entitled the Clean Power Plan, the EPA’s rule used the Clean Air Act’s § 111 to set limits for carbon emissions that would likely be impossible to achieve at individual coal-fired power plants because of costs, unavailable technologies, or a need to severely reduce usage. In that sense, the limits required generation shifting: shifting production from coal-fired power plants to facilities that use natural gas or renewable resources.

To be clear, the 2015 Rule did not expressly say, “Power plants must adopt off-site solutions.” But it did set strict emission limits in part by considering off-site solutions. And those emission limits would likely have been unachievable or too costly to meet if off-site solutions were off the table.

A political faction opposed generation shifting. It challenged the 2015 Rule in this Court, arguing that § 111 does not allow the EPA to consider off-site solutions when determining the best system of emission reduction. The faction included about twenty-four states, represented by many Senators who opposed the 2009 legislation. Conversely, a political faction of about eighteen states defended the rule. Many of their Senators had supported the stymied legislation.

At that litigation’s outset, our Court refused to stay the rule’s implementation. But in an unprecedented intervention, the Supreme Court did what this Court would not. And through its stay, the Supreme Court implied that the challengers would likely succeed on the case’s merits.

Taking the Supreme Court’s not-so-subtle hint, in 2019 President Trump’s EPA repealed the 2015 Rule and issued the Affordable Clean Energy Rule.

Like the rule it replaced, the 2019 Rule relies on the Clean Air Act’s § 111 to reduce carbon emissions. But unlike its predecessor, the 2019 Rule did not include generation shifting in its final determination of the best system of emission reduction.

A new faction then challenged the 2019 Rule. It looked a lot like the faction that had defended the 2015 Rule. Arrayed against that faction were many states and groups that had opposed the old rule. And so once again, politically diverse states and politically adverse special interest groups brought their political brawl into a judiciary designed to be apolitical.

In this latest round, the briefing’s word count exceeded a quarter of a million words. The oral argument lasted roughly nine hours. The case’s caption alone runs beyond a dozen pages. And yet, in all that analysis, hardly any of the dozens of petitioners or intervenors defending the 2015 Rule make a serious and sustained argument that § 111 includes a clear statement unambiguously authorizing the EPA to consider a system of emission reduction that includes off-site solutions or that § 111 otherwise satisfies the major-rules doctrine’s clear statement requirement. Neither does the EPA.

In light of that, I doubt § 111 authorizes the 2015 Rule — arguably one of the most consequential rules ever proposed by an administrative agency:
• It required a “more aggressive transformation in the domestic energy industry,” marking for President Obama a “major milestone for his presidency.”
• It aspired to reduce that industry’s carbon emissions by 32 percent — “equal to the annual emissions from more than 166 million cars.”
• Leaders of the environmental movement considered the rule “groundbreaking,” called its announcement “historic,” and labeled it a “critically important catalyst.”

The potential costs and benefits of the 2015 Rule are almost unfathomable. Industry analysts expected wholesale electricity’s cost to rise by $214 billion. The cost to replace shuttered capacity? Another $64 billion. (“A billion here, a billion there, and pretty soon you’re talking real money.”)

True, you can dismiss that research as industry-funded. But the EPA itself predicted its rule would cost billions of dollars and eliminate thousands of jobs.

On the benefits side of the ledger, the White House labeled the 2015 Rule a “Landmark,” and the President called it “the single most important step America has ever taken in the fight against global climate change.” With that in mind, calculating the rule’s benefits requires a sober appraisal of that fight’s high stakes. According to the rule’s advocates, victory over climate change will:

  • lower ocean levels;
  • preserve glaciers;
  • reduce asthma;
  • make hearts healthier;
  • slow tropical diseases;
  • abate hurricanes;
  • temper wildfires;
  • reduce droughts;
  • stop many floods;
  • rescue whole ecosystems; and
  • save from extinction up to “half the species on earth.”

These are, to put it mildly, serious issues. Lives are at stake. And even though it’s hard to put a dollar figure on the net value on what many understandably consider invaluable, the EPA tried: $36 billion, it said, give or take about a $10- billion margin of error.

So say what you will about the cost-benefit analysis behind generation shifting, it’s hardly a minor question.

Minor questions do not forestall consequences comparable to “the extinction event that wiped out the dinosaurs 65 million years ago.” Minor questions are not analogous to “Thermopylae, Agincourt, Trafalgar, Lexington and Concord, Dunkirk, Pearl Harbor, the Battle of the Bulge, Midway and Sept. 11.” Minor rules do not inspire “years of unprecedented outreach and public engagement.” Minor rules are not “the single most important step America has ever taken in the fight against global climate change.” Minor rules do not put thousands of men and women out of work. And minor rules do not calculate $10 billion in net benefits as their margin of error.

Rather, the question of how to make this “the moment when the rise of the oceans began to slow and our planet began to heal” — and who should pay for it — requires a “decision[] of vast economic and political significance.” That standard is not mine. It is the Supreme Court’s. And no cocktail of factors informing the major-rules doctrine can obscure its ultimate inquiry: Does the rule implicate a “decision[] of vast economic and political significance”?

Proponents of the 2015 Rule say it doesn’t. They have to. If it did, it’s invalid — because a clear statement is missing. And according to the Supreme Court, that is exactly what a major rule requires.

To be sure, if we frame a question broadly enough, Congress will have always answered it. Does the Clean Air Act direct the EPA to make our air cleaner? Clearly yes. Does it require at least some carbon reduction? According to Massachusetts v. EPA, again yes.

But how should the EPA reduce carbon emissions from power plants? And who should pay for it? To those major questions, the Clean Air Act’s answers are far from clear.

I admit the Supreme Court has proceeded with baby steps toward a standard for its major-rules doctrine. But “big things have small beginnings.” And even though its guidance has been neither sweeping nor precise, the Supreme Court has at least drawn this line in the sand: Either a statute clearly endorses a major rule, or there can be no major rule.

Moreover, if Congress merely allowed generation shifting (it didn’t), but did not clearly require it, I doubt doing so was constitutional. For example, imagine a Congress that says, “The EPA may choose to consider off-site solutions for its best system of emission reduction, but the EPA may choose not to consider off-site solutions.” In that instance, Congress has clearly delegated to the EPA its legislative power to determine whether generation shifting should be part of the best system of emission reduction — a “decision[] of vast economic and political significance.”

Such delegation might pass muster under a constitution amended by “moments” rather than the “reflection and choice” prescribed by Article V. But if ever there was an era when an agency’s good sense was alone enough to make its rules good law, that era is over.

Congress decides what major rules make good sense. The Constitution’s First Article begins, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” And every “law” must “pass[] the House of Representatives and the Senate” and “be presented to the President.” Thus, whatever multi-billion-dollar regulatory power the federal government might enjoy, it’s found on the open floor of an accountable Congress, not in the impenetrable halls of an administrative agency — even if that agency is an overflowing font of good sense.

Over time, the Supreme Court will further illuminate the nature of major questions and the limits of delegation. And under that case law, federal regulation will undoubtedly endure. So will federal regulators. Administrative agencies are constitutional, and they’re here to stay.

Beyond that, I leave it for others to predict what the Supreme Court’s emerging jurisprudence may imply for those agencies’ profiles. Here, regardless of deference and delegation doctrines, the regulation of coal-fired power plants under § 111 is invalid for a more mundane reason: A 1990 amendment to the Clean Air Act forbids it.

The Clean Air Act Amendments of 1990 prohibit the EPA from subjecting power plants to regulation under § 111 if they are already regulated under § 112. The 2015 Rule and the 2019 Rule rely on § 111 for the authority to regulate coal-fired power plants. Because the EPA already regulates those coal-fired power plants under § 112, the rules are invalid.

This case touches on some of administrative law’s most consequential, unresolved issues. What is the reach of Massachusetts v. EPA? What is the meaning of a major question? What are the limits of congressional delegation?

My comment:  I much appreciate Judge Walker’s reprise of the historical journey.  After earning my degree in organic chemistry, I am still offended that a bunch of  lawyers refer to CO2 as a “pollutant” as though it were an artificial chemical rather than the stuff of life.  And it annoys me that the American Lung Association fronted this legal attack, as though CO2 was causing breathing problems in addition to a bit of warming during our present ice age. And that list of ailments solved by reducing CO2 emissions rivals any snake oil poster ever printed.

Observers noted that this ruling produces a kind of limbo: Obama’s Clean Power Plan is out of order, and now Trumps Affordable Clean Energy program is shot down.  Likely Biden will try to return to CPP as though Trump never happened, but the same objections will still be raised.  Clearly Judge Walker sees the issue headed for the Supreme Court as the stakes are too high for anyone else.  After their lack of courage on the 2020 election scandal, who knows what the Supremes will do.

Footnote: See post The Poisonous Tree of Climate Change

The roots of this poisonous tree are found in citing the famous Massachusetts v. E.P.A. (2007) case decided by a 5-4 opinion of Supreme Court justices (consensus rate: 56%). But let’s see in what context lies that reference and whether it is a quotation from a source or an issue addressed by the court. The majority opinion was written by Justice Stevens, with dissenting opinions from Chief Justice Roberts and Justice Scalia. All these documents are available at sureme.justia.com Massachusetts v. EPA, 549 U.S. 497 (2007).  The linked post summarized the twisted logic that was applied.

 

SCOTUS Game Over for Climate Lawsuits?

Guy Caruso writes at Real Climate Energy Supreme Court Hearing Should Signal Shift From Baseless Lawsuits to Realistic Climate Solutions  Excerpts in italics with my bolds.

For years, energy manufacturers have helped drive down U.S. carbon emissions by unleashing a flood of home-grown, low-carbon natural gas, reducing America’s carbon footprint even as we use more energy. At the same time, despite emissions reduction progress, a handful of cities and counties including Baltimore, New York City, and Washington, DC among others have sued energy manufacturers in the name of climate change, spurred on by ambitious trial attorneys and imaginative legal theories.

Federal law is clear, though, with the Supreme Court clearly ruling in American Electric Power v. Connecticut in 2011 that it’s EPA’s job to regulate carbon emissions. That’s why trial attorneys have fought so hard to move climate lawsuits to state courts and that’s why a January 19th Supreme Court hearing could be so important.

Major energy firms have asked justices to send Baltimore’s climate lawsuit to federal court, creating a potential legal precedent that could effectively sink the climate lawsuit cottage industry.

Let’s be honest. Climate lawsuits aren’t really about climate anyway. For example, while attorneys argue publicly that such lawsuits are about reducing fossil fuel use in the name of climate, their filings seek only damages, not regulation of emissions or other policies that would actually help our climate. And the so-called damages? While cities like Oakland claim billions in climate change damages in legal filings, they sing a different tune in bond offerings, with Oakland officials saying they are “unable to predict” climate change’s impact on the city. The Manufacturers’ Accountability Project examined the motivations driving these lawsuits in a recent report. The report found that University of Oregon School of Law Professor Mary Christina Wood, who is involved in advancing climate lawsuit strategies stated,

“Building sea walls and repairing roads won’t do anything to fix our global climate system, but it will drain the profits of the fossil fuel companies.”

It’s not just hypocrisy that’s the problem. Climate lawsuits are actually counterproductive when you consider that energy manufacturers have made great strides in reducing emissions, addressing climate change, and pursuing clean energy technology and innovative solutions. In fact, increased energy supplies are driving climate gains. A new Energy Information Administration report says natural gas hydraulic fracturing and competitive energy markets are to credit for reducing U.S. carbon emissions, not government regulation. A switch from coal to natural gas has accounted for more than half the nation’s emissions reductions since 2010, with energy-related carbon emissions in the U.S. dropping 2.8% last year alone. Energy supplies, not government mandates, are why the International Energy Agency has credited the U.S. for achieving the largest absolute decline in carbon emissions of any nation since 2000.

Another major driver in these climate gains? The very manufacturing sector targeted with lawsuits. American manufacturers have reduced their carbon footprint 21 percent over the past decade while their economic value has increased 18 percent. For example, ExxonMobil is cutting greenhouse gas emissions to support Paris Agreement climate change goals. In December the energy firm announced plans for aggressive reductions in emissions, notably methane, over the next five years to help meet global net zero emissions goals. Chevron is taking action to reduce GHG emissions by about 5 million metric tons per year, while ConocoPhillips, Shell, and BP all have similar plans to use ingenuity and best practices to be part of the climate solution. Working together with industry could be a major path to net zero carbon emissions by 2050. [My comment: See post Why Net Zero CO2 is Social Suicide]

Climate lawsuits are legally flimsy and impractical. These suits are infused with the inherent danger of targeting the very energy manufacturers who are active and leading participants in reducing carbon emissions to lower global temperatures. Instead of taking us farther down this counterproductive path, public officials should seek real solutions instead of more lawsuits. U.S. Supreme Court justices have an important opportunity in January to pull the plug on unhelpful climate lawsuits and allow us all to focus instead on the monumental challenges that face our planet.

Background from previous post on Frivolous Climate Lawsuits

Craig Richardson writes at Real Clear Energy The Supreme Court Is Taking Critical Step Towards Resolving Frivolous Climate Suits. Excerpts in italics with my bolds.

Sometimes the most important Supreme Court decisions are overlooked because of their technical nature. That is the case with the Supreme Court’s choice to hear jurisdictional claims in B.P. P.L.C., et al. v. Mayor and City Council of Baltimore.

The Court’s ruling will either allow cities to pursue superfluous nuisance claims against energy companies in state courts or limit the suits to federal courts that are less prone to accept broad liability claims.

These jurisdictional claims are significant because they set the appropriate scope of appellate review for these suits. Lawsuits predicated on federal laws and involving federal officers’ actions should be decided at the federal level. By agreeing to hear arguments in the Baltimore case, the Supreme Court is taking a crucial step towards setting a consistent legal playing field.

The Supreme Court will not rule on the merits of Baltimore’s claims. Instead, they will decide whether the defendants can appeal a jurisdictional claim after a federal court rejects it.

Under existing law, it is clear the defendant can appeal aspects of the decision, but not whether the whole claim is fair game. A ruling in favor of the defendants would force multiple Circuit Courts to reevaluate their previous rulings and rehear jurisdictional claims by the energy companies.

Even though the justices won’t decide on the merits, the key is the context of Baltimore’s lawsuit. For years, city and state officials have been – in partnership with trial lawyers and leftist environmental groups – twisting the meaning of public nuisance laws to sue energy companies for their alleged contributions to climate change, even though these companies aren’t breaking the law. In recent months, localities have filed even more suits, making it especially important that lower courts know whether these cases should be resolved at the federal or state level.

These suits aren’t about helping the environment but are filed by leftist politicians and their backers hoping to score political points as they desperately attempt to fill their city or state coffers.

A senior Rhode Island official said the state’s climate lawsuit was designed to create a “sustainable funding stream” for Rhode Island. The state is desperate for funding because decades of big-spending policies have left Rhode Island officials with a budget deficit approaching $160 million.

In another instance, San Mateo County filed a lawsuit claiming there was a 93% risk of deadly floods by 2050 while telling municipal investors they had nothing to worry about. The S.E.C. is now investigating the county for fraud, and it is clear its lawsuit is motivated by politics, not science.

Instead of addressing climate change or working to build a sustainable future, leftist officials are trying to profit off energy companies, which would drive up the cost for all Americans. Given the clear political undertones of these cases, and the potential devastating impact on the U.S. economy, they must receive a fair hearing in a neutral venue.

It shouldn’t be surprising that state and city officials are fighting to have the cases heard in the state courts, the most favorable jurisdictions possible for them. Local officials are confident they can find a state judge who will issue a broad ruling against the energy companies, which would be difficult to overturn on appeal, regardless of the merits.

This outcome would be a disaster for energy companies and their customers, who would have to worry about individual state judges’ whims. These judges could create a mishmash of legal rulings that ends up being totally incoherent. It is easy to imagine a scenario where the defendants prevail in most of these frivolous lawsuits but lose a few in unfriendly jurisdictions and all of us will pay the price monetarily.

Additionally, state courts shouldn’t be addressing national political issues, especially on climate change, an issue that in the past the Supreme Court ruled should be handled by Congress and the president, not state courts. If laws need to be changed, Congress should change them, instead of having individual judges legislate from the bench. Some courts have already dismissed similar climate suits for this very reason.

Allowing state courts to decide debates of global importance is a recipe for disaster.

Generally, federal courts “are far less likely, as a whole and with some exceptions, to be willing to entertain expansive theories of liability than state courts,” according to George Mason University law professor Donald Kochan. This means federal courts are unlikely to perform legal gymnastics to try and hold energy companies accountable when it is clear they are operating within the law and have permits from the government.

An End to Frivolous Climate Lawsuits?

Craig Richardson writes at Real Clear Energy The Supreme Court Is Taking Critical Step Towards Resolving Frivolous Climate Suits. Excerpts in italics with my bolds.

Sometimes the most important Supreme Court decisions are overlooked because of their technical nature. That is the case with the Supreme Court’s choice to hear jurisdictional claims in B.P. P.L.C., et al. v. Mayor and City Council of Baltimore.

The Court’s ruling will either allow cities to pursue superfluous nuisance claims against energy companies in state courts or limit the suits to federal courts that are less prone to accept broad liability claims.

These jurisdictional claims are significant because they set the appropriate scope of appellate review for these suits. Lawsuits predicated on federal laws and involving federal officers’ actions should be decided at the federal level. By agreeing to hear arguments in the Baltimore case, the Supreme Court is taking a crucial step towards setting a consistent legal playing field.

The Supreme Court will not rule on the merits of Baltimore’s claims. Instead, they will decide whether the defendants can appeal a jurisdictional claim after a federal court rejects it.

Under existing law, it is clear the defendant can appeal aspects of the decision, but not whether the whole claim is fair game. A ruling in favor of the defendants would force multiple Circuit Courts to reevaluate their previous rulings and rehear jurisdictional claims by the energy companies.

Even though the justices won’t decide on the merits, the key is the context of Baltimore’s lawsuit. For years, city and state officials have been – in partnership with trial lawyers and leftist environmental groups – twisting the meaning of public nuisance laws to sue energy companies for their alleged contributions to climate change, even though these companies aren’t breaking the law. In recent months, localities have filed even more suits, making it especially important that lower courts know whether these cases should be resolved at the federal or state level.

These suits aren’t about helping the environment but are filed by leftist politicians and their backers hoping to score political points as they desperately attempt to fill their city or state coffers.

A senior Rhode Island official said the state’s climate lawsuit was designed to create a “sustainable funding stream” for Rhode Island. The state is desperate for funding because decades of big-spending policies have left Rhode Island officials with a budget deficit approaching $160 million.

In another instance, San Mateo County filed a lawsuit claiming there was a 93% risk of deadly floods by 2050 while telling municipal investors they had nothing to worry about. The S.E.C. is now investigating the county for fraud, and it is clear its lawsuit is motivated by politics, not science.

Instead of addressing climate change or working to build a sustainable future, leftist officials are trying to profit off energy companies, which would drive up the cost for all Americans. Given the clear political undertones of these cases, and the potential devastating impact on the U.S. economy, they must receive a fair hearing in a neutral venue.

It shouldn’t be surprising that state and city officials are fighting to have the cases heard in the state courts, the most favorable jurisdictions possible for them. Local officials are confident they can find a state judge who will issue a broad ruling against the energy companies, which would be difficult to overturn on appeal, regardless of the merits.

This outcome would be a disaster for energy companies and their customers, who would have to worry about individual state judges’ whims. These judges could create a mishmash of legal rulings that ends up being totally incoherent. It is easy to imagine a scenario where the defendants prevail in most of these frivolous lawsuits but lose a few in unfriendly jurisdictions and all of us will pay the price monetarily.

Additionally, state courts shouldn’t be addressing national political issues, especially on climate change, an issue that in the past the Supreme Court ruled should be handled by Congress and the president, not state courts. If laws need to be changed, Congress should change them, instead of having individual judges legislate from the bench. Some courts have already dismissed similar climate suits for this very reason.

Allowing state courts to decide debates of global importance is a recipe for disaster.

Generally, federal courts “are far less likely, as a whole and with some exceptions, to be willing to entertain expansive theories of liability than state courts,” according to George Mason University law professor Donald Kochan. This means federal courts are unlikely to perform legal gymnastics to try and hold energy companies accountable when it is clear they are operating within the law and have permits from the government.

Conn AG Adds to Climate Lawsuit Dominos

Climate Dominos

William Allison reports at Energy In Depth Echoes of New York’s Failure:  Connecticut Files Climate Lawsuit.  Excerpts in italics with my bolds.

Four Years In The Making, But The Same Failed Arguments

Back in 2016, Tong’s predecessor, former Attorney General George Jespen, enlisted Connecticut to take part in former New York Attorney General’s Eric Schneiderman’s “AGs United for Clean Power” – a coalition of state attorneys general that aimed to investigate major energy companies over climate change. Not only did Jepsen participate in the March 2016 press conference announcing the coalition, he discussed how it’s formation allowed for easier collaboration between attorneys general.

While the coalition ultimately fell apart, following the withdrawal of several attorneys general and scrutiny over the political motivation behind its formation, the group’s demise (and even New York’s unsuccessful lawsuit) hasn’t stopped Tong. In fact, he’s using many of the same arguments that Schneiderman ineffectively deployed nearly five years ago.

In Monday’s press conference announcing the Connecticut lawsuit, AG Tong said:

“We tried to think long and hard about what our best and most impactful contribution would be. And what we settled on was a single defendant with a very simple claim: Exxon knew, and they lied.” (emphasis added)

Apparently Tong did not get the memo that “Exxon Knew” – the theory pushed by activists and lawyers that the company knew about climate change and hid that knowledge from the public – has been completely debunked. It was this theory that Schneiderman initially built his case against the company around, but he was forced to abandon it because the facts were not on his side. Indeed, after his successor was told to told “to put or shut up” on the accusations, the lawsuit was revised to remove these claims and instead focus on alleged accounting fraud. The case resulted in a resounding defeat for the New York attorney general, with State Supreme Court Justice Barry Ostrager calling the lawsuit “hyperbolic” and “without merit.”

The only other two climate lawsuits that have been decided on their merits were filed by San Francisco and Oakland and then New York City, both of which failed.

Connecticut Has Benefitted From The National Campaign

The Connecticut lawsuit isn’t a standalone effort, but part of a larger national campaign supported and funded by activist and wealthy donors to pursue climate litigation against energy companies.

Tong is still pursing the “Exxon Knew” angle that’s been developed by this campaign despite its previous losses and thinks his lawsuit is the strongest in the nation because Connecticut’s Connecticut Unfair Trade Practices Act doesn’t have a statute of limitations, allowing him to recall ExxonMobil documents from decades ago – even though the company already turned over 3 million documents as part of the New York Attorney General’s failed investigation.

Connecticut was also mentioned in the Pay Up Climate Polluters report, “Climate Costs 2040,” which seems to be a target list of cities to carry out potential litigation, as recent plaintiffs Hoboken, N.J. and Charleston, S.C. were also featured. Pay Up Climate Polluters is a campaign that promotes climate litigation that is sponsored by Center for Climate Integrity, which in turn is a project of Institute for Governance and Sustainable Development (IGSD), which, ironically enough, is paying for the outside counsel in Hoboken’s lawsuit.

IGSD also receives money from a network of Rockefeller groups, which with the help of wealthy donors and activists, have manufactured the entire climate litigation campaign. Tong even filed an amicus brief in support of the climate lawsuit filed by San Francisco and Oakland.

During his press conference, Tong even thanked 350.org and The Sunrise Movement, two other Rockefeller-supported groups that support and actively promote climate litigation.

Conclusion

The lawsuit filed by the Connecticut Attorney General is just the latest case to emerge in the broader, national campaign being pushed by weather donors and activist groups. But while a new lawsuit generates new headlines, it does nothing to change the fact that it’s based on another rehashing of the debunked “Exxon Knew” theory that failed in New York and will do nothing to address climate change.

Background from Previous Post:  Climate Lawsuit 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.]

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