Legal Calamity: Climate Nuisance Lawsuits

I am suing you

It has come to this:  Sue anyone doing anything you don’t like for profit as a “Public Nuisance.”  Further on is reprinted a previous post explaining why it is legally wrongheaded to claim damages against purveyors of fossil fuels because of global warming/climate change.  What is news today is a federal judge making exactly that mistake.

Michael I. Krauss writes at Forbes Federal Judge Allows Misuse Of Public Nuisance Doctrine. Excerpts in italics with my bolds.

I have written, in this column and elsewhere, about the threat to the Rule of Law created by the misuse and abuse of Public Nuisance doctrine. Now I write to bemoan a federal judge’s tolerance of a particularly egregious effort by a state to invoke this ancient tort (typically used to sanction those who blocked the public roads) to judicially create legislative policy.

In State of Rhode Island v Chevron Corp. et al, [decided July 22, 2019], Chief Judge William Smith of the United States District Court in Rhode Island (appointed by President Bush) was presented with a suit launched by the Ocean State against energy companies it says are “partly responsible for our once and future climate crisis.” Rhode Island isn’t claiming that Defendants broke its laws, but that its behavior is “greedy” and suboptimal for the future of the Rhode Island. Of course the same might be said about Rhode Island farmers (who “greedily” raise beef for profit, and contribute methane to the environment) and about Rhode Island car dealers (who “greedily” market expellers of CO2), but I digress.

It is true that, eleven years ago, the Rhode Island Supreme Court unanimously rejected a similar public nuisance suit by the state against three former manufacturers of lead paint. That suit, the court held in 2008, represented an abuse of the public nuisance doctrine. But of course, that was eleven years ago. Times (and the judicial composition of many state courts) have changed. The defendants in this petrochemicals case, understandably wary about being sued in Rhode Island courts in front of state-appointed judges, in a suit launched by the state and aiming to transfer billions into the state, removed the case to federal court on the grounds that federal issues totally pre-empted Rhode Island’s claim. In his July 22, 2019 ruling, Judge Smith decided that the case should be returned to state court and there decided under state law. Here is the remarkable language the judge used to describe what he called the “background” of Rhode Island’s lawsuit — language the judge admitted he cribbed directly from Rhode Island’s complaint!

“…Defendants in this case… have extracted, advertised, and sold a substantial percentage of the fossil fuels burned globally since the 1960s. This activity has released an immense amount of greenhouse gas into the Earth’s atmosphere, changing its climate and leading to all kinds of displacement, death (extinctions, even), and destruction. … Defendants understood the consequences of their activity decades ago, when transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes — however existentially necessary — that would in any way interfere with their multi-billion-dollar profits.”

Judge Smith may believe that his ruling is an example of judicial restraint. But to refuse to recognize the basic constitutional structure of the country is not laudable restraint, but rather timidity. As Justice Felix Frankfurter once explained in a different context: “The easy but timid way out for a trial judge is to leave all cases … for jury determination. A timid judge, like a biased judge, is intrinsically a lawless judge.”

In a virtually identical case to Rhode Island’s, City of New York v BP et al, decided on July 18 2018, Judge John F. Keenan of the United States District Court for the Southern District of New York (appointed by President Reagan) ruled on the city’s public nuisance suit against petrochemical manufacturers:

“The Court agrees that the City’s claims are governed by federal common law…. Where “the interstate or international nature of the controversy makes it inappropriate for state law to control . . . our federal system does not permit the controversy to be resolved under state law.” [citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964)).

“To the extent that the City brings [public] nuisance and trespass claims against Defendants for domestic greenhouse gas emissions, the Clean Air Act displaces such federal common law claims under American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011).

And two weeks before the New York case, United States District Court Judge William Alsup of the Northern District of California (appointed by President Clinton) used the following language in dismissing San Francisco’s and Oakland’s climate liability lawsuits against the top five investor-owned fossil fuel producers:

“With respect to balancing the social utility against the gravity of the anticipated harm, it is true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming. But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?… In our industrialized and modern society, we need (and still need) oil and gas to fuel power plants, vehicles, planes, trains, ships, equipment, homes and factories.”

As Judge Alsup impliedly states, it is absurd to allow a state jury to decide questions of national and international energy policy that the Constitution has clearly left to other branches of government. Rhode Island profits enormously from the products of the very same petrochemical industry that it now claims constitutes a nuisance.

Their suit is an invitation to legislate from the bench, or perhaps from the jury room.

The District of Columbia has recently solicited bids for a contingent fee public nuisance lawsuit against petroleum companies (despite the fact that DC itself has purchased millions of gallons of fuel from these same companies). This kind of “lawfare” can only survive if rulings like that of judge Smith prevail over those of judges Keenan and Alsup. It may be time for the Supreme Court to reiterate the holding of American Electric Power Co. v. Connecticut and to end this abuse.

Is Global Warming A Public Nuisance?

Several posts have discussed activist attempts to use legal actions to press their agenda.  Now we have a fine article by Richard A. Epstein of Hoover Institution, published January 15, 2018
Is Global Warming A Public Nuisance?  
Text below in italics with my bolds and images.
H/T Jeffrey Taylor

New York City and a number of California municipalities, including San Francisco and Oakland, have filed law suits against five major oil companies—BP, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell—for contributing to the increased risk of global warming. These complaints cite recent scientific reports that project that sea levels will rise from 0.2 meters to 2.0 meters (or 0.66 to 6.6 feet) by 2100, with a major loss of land surface area and serious climate disruptions. They further allege that the “Defendants had full knowledge that the fossil fuels would cause catastrophic harm.” The complaints rely chiefly upon public nuisance law, which prohibits unreasonably interfering with public rights in air and water through discharges of dangerous substances—in this instance, carbon dioxide and other greenhouse gases. These cities are demanding that each oil company named in the complaint contribute to an abatement fund to counteract the perceived future threats to the environment from global warming.

In this essay, I confine my attention to the soundness of the public nuisance theory offered by San Francisco and New York in order to explain why private lawsuits are the wrong instrument for dealing with the global warming threat. In full disclosure, in this essay, I provide my own independent legal analysis of these complaints, which I prepared for the Manufacturer’s Accountability Project, an organization that focuses on the impact of litigation on the manufacturing industry.

The basic law of nuisance is divided into two parts, public and private, which complement each other. Private nuisances require at a minimum “an invasion of another’s interest in the private use and enjoyment of land.” The defendant must release, emit, or discharge the offensive materials—such as filth, odors, or noise—onto the plaintiff’s property. The relevant causal connection has to be so tight that there are no intervening forces between the discharge and the ensuing physical invasion of the plaintiff’s property. So, for example, the supplier of various materials and chemicals is not responsible for the waste that a manufacturer emits from their use.

The typical private nuisance dispute usually involves one party (or a very few) who either makes the discharges or suffers consequences from them. The basic intuition behind this limitation on private suits is that administrative costs balloon out of control when the number of parties who suffer some degree of harm increases, as happens when pollution is discharged into a public waterway used by hundreds of different people. Yet it is a mistake to ignore large pollution discharges simply because private law suits are an ineffective instrument to secure damages, an injunction, or both. As early as 1536, the English judges filled this gap by developing the law of public nuisances that rested, both then and now, on the key distinction between general and special damages. Thus, if the defendant erected an obstruction along a public road, none of the parties delayed by the blockage had a private right of action. But any individual who ran into the obstacle and suffered physical injuries or property damage could recover in tort. Now, the shortfall in deterrence attributable from not compensating the delayed travelers was offset by a fine against the wrongdoer, the money from which could be used to remove the obstacle or placed in the public treasury.

Woman on a ducking stool. Historical punishment for ‘common scold’ – woman considered a public nuisance. (Welsh/English heritage)

It is important to understand the enormous stretch in moving from traditional public nuisances to the modern global warming cases. The first point of difference is that only five companies—but no other carbon-dioxide-emitting polluter in the world—are joined as defendants. That is to say, the cities are apparently seeking to recover virtually all of their alleged abatement costs from the five named oil companies, instead of holding each only for its pro rata share of total emissions from all sources. But just what fraction of total carbon dioxide emissions can be traced to the named defendants? Note first that any release of carbon dioxide into the atmosphere has the same impact on global warming regardless of its source.

These five oil companies are responsible at most for a tiny fraction of the global total of carbon dioxide emissions. First, just looking at the American scene, some good chunk of the carbon dioxide releases are from other oil companies not named in the complaint. Another, probably larger, chunk comes from burning coal, making cement, and human and animal respiration. Carbon dioxide is also released in large quantities by forest fires, including those that recently overwhelmed Northern and Southern California. And that’s just in America; vast amounts of carbon dioxide are released from a similar range of human activities all across the globe.

Global Greenhouse Gas Emissions by Source 2013

Here are some numbers: As of 2015, all carbon dioxide emissions from the United States comprised 14.34 percent of the global total, while China’s emissions stood at 29.51 percent. Even if the five oil companies were somehow responsible for, say, 10 percent of the United States’ carbon dioxide emissions, that would be less than one percent of the total human releases. Under standard tort rules, the liability of each defendant must be limited to its own pro rata share of the total harm given that under Section 433A of the Restatement of Torts, there is a “reasonable basis for determining the contribution of each cause to a single harm,” in this instance measured by market shares.
Indeed, these public nuisance lawsuits are especially dubious, given that the oil companies did not by their sales emit any carbon dioxide into the atmosphere. The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits. These numerous parties used these products in countless different ways, with as much knowledge of their asserted effects on global warming as these five defendants. How could the oil companies have known about the anticipated course of global warming forty years ago when key government studies done today are uncertain about the magnitude of the effects of emissions on sea levels and the economic consequences?

The first paragraph of the New York City complaint ducks these factual complexities by insisting, falsely, that crude oil was “a product causing severe harm when used exactly as intended.” But the end uses of crude oil are so varied (including, for example, the creation of various plastics in common use today) that the effective control of emissions is best done through the regulation of these end users and not the oil companies. Indeed, even for gasoline, the level of carbon dioxide emissions critically depends on the operation and maintenance of the many different types of facilities, equipment, and vehicles, all of which are beyond the direct control of the oil companies. Yet all these end users are already subject to extensive emissions controls under the Clean Air Act and countless other environmental directives, both at the state and federal level.

This sensible distribution of regulatory authority rests on the superior ability of government agencies (at least compared to the courts), often in cooperation with each other, to formulate and maintain coherent policies to regulate the emissions of carbon dioxide, as well as methane, nitrous oxide, and fluorinated gases, which the EPA calculates account for 18 percent of greenhouse gas emissions.

The issues here are especially complex for many technical and logistical reasons. One critical task is to decide the optimal level of emissions. The implicit assumption of the New York and San Francisco lawsuits is that the world would become a better place if all emissions of carbon dioxide were stopped. But that position ignores the enormous benefits that come from the use of fossil fuels, which continue to supply over 80 percent of the nation’s energy needs. No other fuel source could keep manufacturing, transportation, and commerce alive. And it is just exaggeration to claim, as the city plaintiffs do, that these oil companies “have done nearly all they could to create [the] existential threat” of global warming when in fact energy efficiency in the United States has consistently improved, particularly in generating electrical power.

No public nuisance suits for global warming can solve a problem that must be addressed by a coherent regulatory program. Instead, chaos will follow if hundreds of different states, counties, and cities are allowed to bring separate actions under state law. It bears emphasis that in 2011, a unanimous Supreme Court decision in American Electric Power Co. v. Connecticut held that the combination of the Clean Air Act and actions by the Environmental Protection Agency “against carbon-dioxide emitters . . . displace the claims that the plaintiffs seek to pursue” under a public nuisance theory brought under federal law. The Court left open the question of whether the federal regulation at the time preempted any state law cause of action for public nuisance.

Summary

But, as I argued at the time, the only viable solution was for the federal government and the EPA to “orchestrate” the effort to control emissions. The point is doubly true against these remote, upstream defendants who have not emitted anything themselves. The standard analysis of federal preemption has long held that states may not engage in their own remedial efforts, even by actions in tort, when extensive federal regulation occupies the field, or when state activity either frustrates federal action or is in conflict with it. If anything, the scope of federal oversight, actual and prospective, is far more comprehensive than it was when American Electric Power was decided. And so federal preemption alone should block a set of dubious public nuisance claims that should never have been brought in the first place.

Background:  Critical Climate Intelligence for Jurists (and others)

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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 a result of 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

sf-ca-past-projected

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.

Footnote:

Say what you want about the liberal arts, but they’ve found a cure for common sense.

By Robert Curry writes at American Thinker Making Sense of Common Sense. Excerpts in italics with my bolds.

As we all know, acquiring common sense can be a matter of life and death. I’m thinking, for example, of the teenage boy who swallowed a garden slug on a dare, became paralyzed, and died recently. Because children lack common sense, parents must do what they have always done, trying to instill common sense in their children while at the same time using their own common sense to encompass the growing child.

Becoming a person of common sense has always been a life-defining challenge, but acquiring common sense has gotten a lot more difficult for young people in our time, especially if they have spent some time in our institutions of higher learning. My witty friend Robert Godwin has this to say about that: “Say what you want about the liberal arts, but they’ve found a cure for common sense.”

When I headed off to college, my high school teacher who was my mentor offered me two commonsense rules to follow: “Take care to stay well, and choose professors, not courses.” Because of my high regard for him, I took his words to heart. Later, when I saw the problems my fellow students brought on themselves by not getting enough sleep and generally being careless about their health, I understood the practical wisdom of what he had told me. And the second rule helped me more quickly understand the value of navigating my way through college by who was teaching the course rather than by the course title.

For years, I handed on the same commonsense wisdom to young folks I knew when they headed off to college. But I have not offered that advice for some years now. Here is what I tell them now: “They are going to try to knock common sense out of you; don’t let them.”

Post script: From the comments below, Otto was pushing for info regarding volcanoes and the Holocene Climate Optimum. I responded thus:

Otto, I don’t see volcanoes causing the HTM (Holocene Thermal Maximum).
The HTM ended at different times in different parts of the world, but it had ended everywhere by 4,000 BP (BP here means the number of years before 2000) and the world began to cool. Your link refers to the Santorini eruption ending the Minoan warming as well as that civilization.

From Renssen et al. 2012:
“The Holocene Thermal Maximum (HTM) was a relatively warm climatic phase between 11 and 5 ka BP, as indicated by numerous proxy records (Kaufman et al., 2004; Jansen et al., 2007, 2008; Wanner et al., 2008; Miller et al., 2010a; Bartlein et al., 2011). The relatively warm conditions during the HTM are commonly associated with the orbitally-forced summer insolation maximum (Wanner et al., 2008; Bartlein et al., 2011). However, proxy records suggest that both the timing and magnitude of maximum warming varied substantially between different regions across the globe, suggesting involvement of additional forcings and feedbacks (Jansen et al., 2007; Bartlein et al., 2011). One important additional factor affecting the early Holocene climate is the remnant Laurentide Ice sheet (LIS).
https://dial.uclouvain.be/pr/boreal/object/boreal%3A112248/datastream/PDF_01/view

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.

It’s just common sense, after all.

Fort Lauderdale Repels Climate Pirates

This just in from Erin Mundahl writing at Energy In Depth Fort Lauderdale Deals Another Blow to Climate Litigation Campaign. The article will appear below in italics with my bolds. But first some background.

Background on Climate Piracy

Those paying attention have noticed for some years now a new type of pirate has emerged: Climate Lawyers. Taking their game plan from the Tobacco Pirates, they are now targeting a different set of deep pockets: Big Oil Companies. Since 30+ Billion US dollars were extracted from tobacco companies (including contingency fees to lawyers), a comparable, if not larger payday is sought by these new corporate raiders. Unlike Somali pirates who attacked the tankers themselves, Climate Lawyers are using the courts to sue Big Oil for damages their products cause consumers. In order to succeed in these lawsuits, they recruit jurisdictions like states or cities to claim they have been victimized by having fossil fuel products imposed upon them.

[Full Disclosure: The photo above symbolically depicts Climate Lawyers in the boat confronting an oil tanker, when in fact they won’t get their suits wet. The original image was a Greenpeace zodiac]

Fort Lauderdale Stands Up Against Pressure from Climate Lawyers

It’s a bright day for Fort Lauderdale. Despite a full-court press by climate activists, city officials have decided not to pursue a climate liability lawsuit. This is a blow for climate activists, who are hoping to expand their litigation campaign into Florida.

Over the past six months, lawyers and environmental groups have devoted considerable time and effort to persuading cities in the Sunshine State to join their quixotic climate litigation campaign. Despite their efforts, Fort Lauderdale was not convinced.

EarthRights International hides behind NGO to lobby city officials.

Released emails show that EarthRights International, the Rockefeller-funded organization representing the City and County of Boulder and San Miguel County in their climate change lawsuit, and the Institute for Governance and Sustainable Development (IGSD) coordinated to lobby Fort Lauderdale city officials throughout 2018.

In June, Mayor Dean Trantalis and his chief of staff, Scott Wyman, received emails from a Miami Beach lobbyist, Seth Platt. Platt was hired to represent IGSD, which runs the Center for Climate Integrity, a project that “supports meritorious climate cases aimed at holding fossil fuel companies and other climate polluters liable for the damages they have caused.” The emails show that Platt was eager to introduce Trantalis and Wyman to EarthRights International (ERI) and their agent, Jorge Musuli, who Platt said was working with the City of Miami to file a climate nuisance lawsuit:

“I have invited Jorge Mursuli to the meeting as his group, [ERI], is working with the City of Miami to file a lawsuit. We are trying to collaborate on advocacy in Broward.”

Sher Edling joins EarthRights International in their pursuit

In a surprising twist of fate, ERI added another plaintiffs’ attorney firm involved in climate litigation, Sher Edling, as co-counsel in their pursuit of the city. By July, Seth Platt had arranged for Vic Sher and Matt Edling, who represent more than a dozen cities in climate cases, to join ERI for a meeting with Fort Lauderdale City Attorney Alain Boileau. After the meeting, Boileau followed up with the mayor, telling his boss about the “positive meeting” he had had with Sher, Edling, Marco Simons (general counsel for ERI), and Mursuli, all thanks to Platt.

Records show that Platt conducted all of these meetings on behalf of the Institute for Governance & Sustainable Development – not ERI. When pressed on this by local reporters, Platt did not respond.

IGSD finds itself at the center of the climate litigation campaign…. again

Platt’s lobbying affiliation highlights the well-coordinated network of climate activism aimed at taking down fossil fuels by any means necessary. IGSD is a key player in a carefully organized media campaign that rehashes a stale, repeatedly debunked story for the sake of silencing dissent . Richard Wiles, who serves as the ringleader for their climate litigation campaign, produced the IGSD-funded podcast Drilled and published Climate Liability News, an activist site designed to promote climate litigation.

ERI fails to impress the City Commission

In October ERI General Counsel Marco Simons gave a presentation to Trantalis and the Fort Lauderdale City Commission. The meeting was a full court press that emphasized how climate change could hurt city finances and how wealthy anti-fossil fuel foundations were willing to foot the bill for the lawsuit. Simons explained their strategy during the pitch:

At the litigation stage it would be necessary to join together with co-counsel from private firms. They would be interested in pursuing this on a contingency fee-basis… And it would be a combination of our pro-bono representation and a private firm, contingent fee representation, again with no up-front cost to the city and that’s the model that’s been done in all of these cases so far.”

Thankfully, Fort Lauderdale decided to resist the pressure. Despite the focus Simons put on how the lawsuit could financially benefit the city, it would tie the city up in litigation for months or years, taking attention away from much needed resiliency projects. So far, none of the plaintiffs – or the cities – pursuing climate litigation across the country have seen a dime. Meanwhile, the major green donors financing the pro bono legal work are using the lawsuits to promote their own climate agenda, both in the courtroom and the court of public opinion.

Local voices also reject lawsuits

Over the past several months, op-ed pieces in papers around Florida have emphasized that suing energy companies distracts attention from the harms of climate change and discourages cooperation between industry and government. In a Naples Daily News op-ed this spring, Sal Nuzzo of the Tallahassee-based James Madison Institute, criticized using lawsuits to develop state policy, instead pushing for cooperation between businesses and government for environmental issues:

“For policies to succeed, public officials must work with business…Florida’s unemployment rate is low and our economy is growing at a faster pace than the U.S. economy overall in part because our tax and regulatory burdens are lower than many other states. A hostile approach toward manufacturers would ill serve our state and hinder efforts to address environmental issues.”

Not only does litigation waste taxpayer money, it also distracts from state-level policies that are making meaningful improvements to Florida’s environment. Florida Governor Ron DeSantis (R) “went green” in the words of political columnist Barney Bishop, who wrote in the Sunshine State News to praise the governor for his plan to invest heavily in resiliency efforts and Everglades restoration and water cleanup, an approach he contrasted with that of “public officials working hand in hand with activists”:

“The reality is that real-life actions like the ones being taken by Gov. Ron DeSantis are the best way to help our environment. Lawsuits such as these offer no real benefit and only serve to threaten American companies and American jobs.”

It’s a good thing Fort Lauderdale saw through the scam.

See also US State Attorneys Push Back on Climate Lawsuits

See also Is Global Warming A Public Nuisance?

Kids Fortune Tellers Vs. US Update

The 21 young people suing the U.S. government for exacerbating climate change hope the Ninth Circuit Court of Appeals sends their case to trial.

By Karen Savage writes at Climate Liability News Ninth Circuit Judges Appear Skeptical of Role in Kids Climate Suit vs. U.S. Government. Excerpts in italics with my bolds

A three-judge panel of the Ninth Circuit Court of Appeals on Tuesday appeared skeptical of the courts’ role in dealing with climate change in the landmark constitutional climate case brought by 21 young people against the U.S. government. But the kids’ attorneys argued in a pivotal hearing that they are only asking the court to apply rights already laid out in the Fifth Amendment.

The hearing, held in Portland, Ore., will decide whether the case, Juliana v. United States, continues on toward trial. The suit has been vehemently opposed by the Justice Department since it was filed in 2015, and this hearing could grant the government an extraordinary measure by granting an appeal before the trial even began.

Judges Mary H. Murguia and Andrew D. Hurwitz of the Ninth Circuit Court of Appeals, and Josephine L. Staton of District Court for the Central District of California presided over the hearing and are expected to issue their ruling in the next few months.

Hurwitz summed up the issues the court is wrestling with, primarily whether the courts should intervene in a subject ordinarily left to the executive and legislative branches.

“I’m sympathetic to the problems you point out,” he said. “But you shouldn’t say this is just an ordinary suit. … You’re asking us to do a lot of new stuff, aren’t you?”

Julia Olson, lead attorney for the young plaintiffs, disagreed.

“It would be the first time that it would have been done, your Honor, as to this factual context where the government admits the monumental threat to people and to lives and that their acts in promoting fossil fuels and allowing for the extraction and all the affirmative things they do cause the emissions that are a substantial cause of climate change,” Olson said.

Hurwitz pushed back on Olson’s assertion, saying it appeared as if the plaintiffs were asking the court to break new ground by allowing the case to continue.

“The issue here is whether this branch of government, embodied by the three of us today, has the ability to issue the relief that your clients seek,” said Hurwitz to Olson during her arguments, adding that he doesn’t doubt that Congress and the president could give the plaintiffs the relief they seek.

“I don’t think Congress and the president ever will,” said Olson in response.

“Well then we may have the wrong Congress and the wrong president. That’s occurred from time to time over history,” said Hurwitz.

“You present compelling evidence that we have a real problem. You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect. But the tough question for me is do we get to act because of that.”

The plaintiffs allege in the suit that the federal government is violating their Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They also say the government is failing to protect essential public trust resources and are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.

The federal government has tried numerous times to shake the case since it was first filed in 2015. The Ninth Circuit has rejected four petitions for an extraordinary writ of mandamus by the government and the Supreme Court has rejected additional requests. The Ninth Circuit eventually granted a final, last-ditch effort to hear a pre-trial appeal late last year, and this hearing was their chance to hear oral arguments from both sides.

“The outcome of this hearing will determine the future of our case and whether or not there will be justice for young people in this country, who are disproportionately impacted by the climate crisis,” said Vic Barrett, a 20-year-old plaintiff from White Plains, NY.

“Our fundamental constitutional rights, including our right to a climate system capable of sustaining human life, are being violated by our government,” said Barrett.

In November 2016, U.S. District Court Judge Ann Aiken became the first to rule that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society” and ordered the case to trial.

Aiken’s ruling prompted the National Association of Manufacturers (NAM), the American Fuel & Petrochemical Manufacturers (AFPM), and the American Petroleum Institute (API) to intervene on behalf of the federal government, but the industry groups quickly withdrew after Judge Coffin ruled that the groups must intervenors take a joint position on climate science.

Attorneys for the Trump administration contend there is “no fundamental constitutional right to a ‘stable climate system’ and maintain that because “global climate change affects everyone in the world,” the plaintiffs are not suffering from a legally actionable injury, but from “generalized grievances.”

“This action is one that appears to enforce the Constitution, but in reality it’s nothing more than a direct assault on the constitutional design,“ said Jeffrey Bossert Clark, lead attorney for the Department of Justice.

One district court judge in the country is acting to impose a plan on the entire executive branch in the country, to tell them to stop having inaction on climate change, to do additional things to combat it,” Clark said. “That’s sort of something that’s radical, its anathema.”

The government also maintains that even if that right existed, and the plaintiffs have been harmed, the government is not responsible.

Plaintiffs say the actions by the Trump administration are continuing to harm them by further damaging the climate.

“The U.S. government has known for nearly four years that my co-plaintiffs and I are being personally harmed by their actions,” Barrett said. “Yet it continues to use public resources for fossil fuel extraction and production, and give legal sanction to the national fossil fuel energy system, completely abdicating its responsibility to protect us from the dangers it helped perpetuate.”

The government has argued that the suit falls under the Administrative Procedures Act (APA), which outlines procedures for judicial review when plaintiffs make claims against a federal agency, and said that the “plaintiffs have refused to comply with the requirements of the APA.”

That premise was rejected by Aiken, who said that the APA does not address the plaintiffs’ claims because they seek review of “aggregate action by multiple agencies, something the APA’s judicial review provisions do not address.”

In a trial, the young plaintiffs plan to call expert climate science witnesses, as well as experts in attribution science, who have researched how much of global warming can be attributed to particular countries and industries.

Much of the evidence already submitted by the young plaintiffs comes from the government itself, with extensive research into climate impacts coming NASA and NOAA, as well as the release last year of the Fourth National Climate Assessment.

In her closing arguments, Olson asked the court to lift the stay and remand the case to trial.

When our great grandchildren look back on the 21st century, they will see that government sanctioned climate destruction was the constitutional issue of this century,” Olson said.

“We must be a nation that applies the rule of law to harmful government conduct that threatens the lives of our children so that they can grow up safe and free and pursue their happiness. That is what the founders intended.”

Footnote:

How amazing that the kid’s lawyer is able to see into the future so clearly!  Did she learn that in law school, is it a gift, or does she have a crystal ball?

The Poisonous Tree of Climate Change

This post was triggered by noticing an event in April that had escaped my attention.  It seems that serial valve turner Ken Ward was granted a new trial by the Washington State Court of Appeals, and he is allowed to present a “necessity defense.”  This astonishingly bad ruling is reported approvingly by Kelsey Skaggs at Pacific Standard Why the Necessity Defense is Critical to the Climate Struggle. Excerpt below with my bolds.

A climate activist who was convicted after turning off an oil pipeline won the right in April to argue in a new trial that his actions were justified. The Washington State Court of Appeals ruled that Ken Ward will be permitted to explain to a jury that, while he did illegally stop the flow of tar sands oil from Canada into the United States, his action was necessary to slow catastrophic climate change.

The Skaggs article goes on to cloak energy vandalism with the history of civil disobedience against actual mistreatment and harm.  Nowhere is it recognized that the brouhaha over climate change concerns future imaginary harm.  How could lawyers and judges get this so wrong?  It can only happen when an erroneous legal precedent can be cited to spread a poison in the public square.  So I went searching for the tree producing all of this poisonous fruit. The full text of the April 8, 2019, ruling is here.

A paper at Stanford Law School (where else?) provides a good history of the necessity defense as related to climate change activism The Climate Necessity Defense: Proof and Judicial Error in Climate Protest Cases Excerpts in italics with my bolds.

My perusal of the text led me to the section where the merits are presented.

The typical climate necessity argument is straightforward. The ongoing effects of climate change are not only imminent, they are currently occurring; civil disobedience has been proven to contribute to the mitigation of these harms, and our political and legal systems have proven uniquely ill-equipped to deal with the climate crisis, thus creating the necessity of breaking the law to address it. As opposed to many classic political necessity defendants, such as anti-nuclear power protesters, climate activists can point to the existing (rather than speculative) nature of the targeted harm and can make a more compelling case that their protest activity (for example, blocking fossil fuel extraction) actually prevents some quantum of harm produced by global warming. pg.78

What?  On what evidence is such confidence based?  Later on (page 80), comes this:

Second, courts’ focus on the politics of climate change distracts from the scientific issues involved in climate necessity cases. There may well be political disagreement over the realities and effects of climate change, but there is little scientific disagreement, as the Supreme Court has noted.131

131 Massachusetts v. E.P.A., 549 U.S. 497, 499 (2007) (“The harms associated with climate change are serious and well recognized . . . [T]he relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels by the end of the century, severe and irreversible changes to natural ecosystems, a significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences, and an increase in the spread of disease and the ferocity of weather events.”).

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)

From the Majority Opinion:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.” Source: National Research Council:

National Research Council 2001 report titled Climate Change: An Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC report, concluded that “[g]reenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising.” NRC Report 1.

Calling global warming “the most pressing environmental challenge of our time,”[Footnote 1] a group of States,[Footnote 2] local governments,[Footnote 3] and private organizations,[Footnote 4] alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.  Specifically, petitioners asked us to answer two questions concerning the meaning of §202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.

EPA reasoned that climate change had its own “political history”: Congress designed the original Clean Air Act to address local air pollutants rather than a substance that “is fairly consistent in its concentration throughout the world’s atmosphere,” 68 Fed. Reg. 52927 (emphasis added); declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid. (citing H. R. 5966, 101st Cong., 2d Sess. (1990)); and addressed global climate change in other legislation, 68 Fed. Reg. 52927. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the agency to address it.

Having reached that conclusion, EPA believed it followed that greenhouse gases cannot be “air pollutants” within the meaning of the Act. See ibid. (“It follows from this conclusion, that [greenhouse gases], as such, are not air pollutants under the [Clean Air Act’s] regulatory provisions …”).

Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report’s statement that a causal link between the two “ ‘cannot be unequivocally established.’ ” Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930.

The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself—which EPA regards as an “objective and independent assessment of the relevant science,” 68 Fed. Reg. 52930—identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years … .” NRC Report 16.

In sum—at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge the EPA’s denial of their rulemaking petition.[Footnote 24]

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.

My Comment: Note that the citations of scientific proof were uncontested assertions by petitioners.  Note also that the majority did not rule that EPA must make an endangerment finding:  “We hold only that EPA must ground its reasons for action or inaction in the statute.”

From the Minority Dissenting Opinion

It is not at all clear how the Court’s “special solicitude” for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as a State cannot compensate for petitioners’ failure to demonstrate injury in fact, causation, and redressability.

When the Court actually applies the three-part test, it focuses, as did the dissent below, see 415 F. 3d 50, 64 (CADC 2005) (opinion of Tatel, J.), on the State’s asserted loss of coastal land as the injury in fact. If petitioners rely on loss of land as the Article III injury, however, they must ground the rest of the standing analysis in that specific injury. That alleged injury must be “concrete and particularized,” Defenders of Wildlife, 504 U. S., at 560, and “distinct and palpable,” Allen, 468 U. S., at 751 (internal quotation marks omitted). Central to this concept of “particularized” injury is the requirement that a plaintiff be affected in a “personal and individual way,” Defenders of Wildlife, 504 U. S., at 560, n. 1, and seek relief that “directly and tangibly benefits him” in a manner distinct from its impact on “the public at large,” id., at 573–574. Without “particularized injury, there can be no confidence of ‘a real need to exercise the power of judicial review’ or that relief can be framed ‘no broader than required by the precise facts to which the court’s ruling would be applied.’ ” Warth v. Seldin, 422 U. S. 490, 508 (1975) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221–222 (1974)).

The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon “harmful to humanity at large,” 415 F. 3d, at 60 (Sentelle, J., dissenting in part and concurring in judgment), and the redress petitioners seek is focused no more on them than on the public generally—it is literally to change the atmosphere around the world.

If petitioners’ particularized injury is loss of coastal land, it is also that injury that must be “actual or imminent, not conjectural or hypothetical,” Defenders of Wildlife, supra, at 560 (internal quotation marks omitted), “real and immediate,” Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (internal quotation marks omitted), and “certainly impending,” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted).

As to “actual” injury, the Court observes that “global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming” and that “[t]hese rising seas have already begun to swallow Massachusetts’ coastal land.” Ante, at 19. But none of petitioners’ declarations supports that connection. One declaration states that “a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area,” but there is no elaboration. Petitioners’ Standing Appendix in No. 03–1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a “significan[t]” non-global-warming cause of Boston’s rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners’ 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.

The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability.

Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury—the loss of Massachusetts coastal land—the connection is far too speculative to establish causation.

From Justice Scalia’s Dissenting Opinion

Even on the Court’s own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a “judgment” as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: “If,” the Court says, “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.” Ante, at 31. But EPA has said precisely that—and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science:

“As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities (pp. 9–12). It also noted that ‘[a] diverse array of evidence points to a warming of global surface air temperatures’ (p. 16). The report goes on to state, however, that ‘[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale’ (p. 17).

“The NRC also observed that ‘there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols’ (p. 1). As a result of that uncertainty, the NRC cautioned that ‘current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).’ Id. It further advised that ‘[r]educing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called “feedbacks” that determine the sensitivity of the climate system to a prescribed increase in [GHGs].’ Id.

“The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that ‘[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood’ (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs.

“Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system.” 68 Fed. Reg. 52930.

I simply cannot conceive of what else the Court would like EPA to say.

Conclusion

Justice Scalia lays the axe to the roots of this poisonous tree.  Even the scientific source document relied on by the majority admits that claims of man made warming are conjecture without certain evidence.  This case does not prove CAGW despite it being repeatedly cited as though it did.

Footnote:  

Taking the sea level rise projected by Sea Change Boston, and through the magic of CAI (Computer-Aided Imagining), we can compare to tidal gauge observations at Boston:

 

 

Valve Turners Compare to Anti Vaxxers

Demonstrators hold signs during a protest against the United We Roll Convoy For Canada pro-pipeline rally in front of Parliament Hill in Ottawa, Ontario, Canada, on Tuesday, Feb. 19, 2019. United We Roll Convoy For Canada lead organizer Glen Carritt said their main message is connecting the Canadian energy sector from the east to west through pipelines, according to Canadian Broadcasting Corp. Photographer: David Kawai/Bloomberg © 2019 BLOOMBERG FINANCE LP

Background:

The measles outbreak raises the issue of parents irrational fears of having their children vaccinated. SF Chronicle reports: All 10 kindergartens with the highest rates of vaccine exemptions are in N. California. Excerpts in italics with my bolds.

Ninety-five percent of the population needs to be vaccinated to stave off an outbreak of a very contagious disease, such as one that broke out at Disneyland in 2014.

Doctors say just 3 percent of children at most should be exempt, due to serious health complications, such as a child undergoing chemotherapy.

There is currently no authority in the state that decides on the validity of issued medical exemptions for vaccines.

California kindergartens with the highest medical exemption rates include:

58 percent: Sebastopol Independent Charter – Sonoma County
52 percent: Yuba River Charter – Nevada County
51 percent: Sunridge Charter – Sonoma County
43 percent: Live Oak Charter – Sonoma County
38 percent: Berkeley Rose School – Alameda County
38 percent: The New Village School – Marin County
37 percent: Coastal Grove Charter – Humboldt County
37 percent: The Waldorf School of Mendocino County – Mendocino County
35 percent: Summerfield Waldorf School & Farm – Sonoma County
33 percent: Santa Cruz Waldorf School – Santa Cruz County

Linking Fear of Vaccines with Fear of Fossil Fuels

Michael Lynch writes at Forbes Does The Measles Outbreak Have A Lesson For The Petroleum Industry? Excerpts in italics with my bolds.

Nearly everyone complains about the poor science literacy of the American public, but all too often they are referring to citizens’ refusal to believe what they want them to, whether its about climate change, vaccines, peak oil, or homeopathic medicine. The public has no problem accepting science (broadly defined) when it is to their benefit. Proposals to ban disposable diapers were popular briefly, before it was pointed out that the life-cycle effects of cotton diapers were not significantly better and possibly worse for the environment, after which the bans were quietly abandoned.

But the recent measles outbreak demonstrates a very important element of science literacy, namely the cost-benefit equation. People are relatively inattentive and more likely to adopt populist ideas when the impact on their lives is minimal, but employ more skepticism when the impact on their lives is significant. Although there are numerous cases of irrational fears driving policy, there are others where the public thinks more carefully.

Which is where the anti-vaccination movement can be a teachable moment. Until recently, criticism was primarily from those in the medical community. If the occasional child wasn’t vaccinated, it had little impact on others. But with this winter’s outbreak of measles, it has become obvious that there is a significant cost to the loss of herd immunity, and scrutiny of the science behind the anti-vaccination movement made it clear to many more people that it is somewhere between flawed and non-existent. Governments have put aside the passionate objections and demanded that vaccination be more widespread with much less resistance than would have appeared a few years ago.

Could this lesson prove valuable to the petroleum industry? There are two strong advocacy groups that are primarily passionate, not rational, with lots of overlap. Some oppose pipelines, thinking that will mean oil and gas will stay in the ground and not be consume, and others oppose fracking, in the belief that it is, well, scary or something.

Notice that no one discarded their cell phones when it was suggested they might cause brain tumors. Two elements seem to have come into play. First, the widespread use of cellphones without obvious negative health consequences encouraged skepticism about the possibility that there was a clear and present danger, as the saying goes. But also, giving up cellphones seemed like an unacceptable cost to most of the public.

Which is problematic for the petroleum industry. Banning fracking or pipeline construction appears much less contentious, especially where it is perceived as only affecting oil companies, or as many call them, “Big Oil.” In other words, such opposition is seen as cost-free and therefore easier to support, or at least ignore.

But familiarity is another element leading to acceptance. A couple of decades ago, I heard Michael Golay of M.I.T.’s nuclear engineering department talk about how new technologies were often resisted, but gradually became accepted as more and more people were familiar with them. (Railroads, cars, etc.) This certainly appears to be the case where nuclear power is concerned, as the operation of hundreds of reactors for decades has seen a total of two serious accidents (I don’t consider Three Mile Island a serious accident), but with two generations who have lived through operations of nuclear power with problems only under the most unusual of circumstances (a 1000-year tsunami), the early warnings of heavy death counts from nuclear power appear foolish.

The industry has tried to emphasize the fact is that both involve pipelines and fracking, while not ubiquitous like cellphones, have a long-standing provenance. There are 2.4 million miles of oil and gas pipelines in the United States, and over 2 million oil and gas wells have been hydraulically fractured. The industry has regularly pointed out these facts and they appear to have gained some traction, where mainstream politicians sometimes argue for tighter regulation, but few have embraced opponents.

Neither activity is completely safe, because nothing is completely safe. Having heavy trucks on highways increases fatalities, but no one suggests banning them, merely regulating them to improve safety. Banning cellphones would reduce deaths from distracted driving, but governments (with public support) have chosen to regulate them instead. Banning pipelines or fracking is not too dissimilar from those cases, except that it would not appear to have costs for the average citizen.

Because relatively few people were affected by bans on either (land-owners in western New York the most obvious exception), but as some gas companies cease new hookups because of lack of pipeline capacity, that could change. Unfortunately, the number of people affected will be minimal compared to, say, the threat from measles due to the anti-vaccine movement, however some of those will be small businesses that have more clout than home-owners.

Similarly, while the impact of any given shale well on world oil and gas prices is minimal, a slowing of fracking for oil could mean higher prices for consumers generally, especially given the current geopolitical situation. Which is not to say that the public should throw caution to the wind and allow both pipeline construction and fracking to occur without oversight, but merely that a more rational estimate of the costs and benefits should be made. This may seem like a vain hope, but remember, you can still buy disposable diapers.

Michael Lynch: I spent nearly 30 years at MIT as a student and then researcher at the Energy Laboratory and Center for International Studies. I then spent several years at what is now IHS Global Insight and was chief energy economist. Currently, I am president of Strategic Energy and Economic Research, Inc., and I lecture MBA students at Vienna University. I’ve been president of the US Association for Energy Economics, I serve on the editorial boards of three publications, and I’ve had my writing translated into six languages. My book, “The Peak Oil Scare and the Coming Oil Flood” was just published by Praeger.

Footnote:

One of the arguments by those fearing fossil fuels is that their use must stop now since we will soon run out of them.  Lynch rebuts this notion (“peak oil”) in the video below.  He addresses why people are mistaken to believe the following points of conventional “wisdom”:

Oil is finite and must run out.

Pundits are optimists, either conucopians or industry shills.

Reserve numbers are not reliable.

Only one barrel is found for every four consumed.

See also post at Master Resource Michael Lynch Interview (new book reviews, refutes ‘Peak Oil’ scare)

Frackingphobia: Facts vs. Fears

Why People Rely on Pipelines

Call Me a Carbon Polluter? See You in Court.

Program Statement October 23, 2018:Canada’s plan ensures that polluters pay for their carbon emissions in every province

Justin Trudeau justified the federal carbon tax this way:

“The core of putting a price on pollution is exactly that. Making sure that pollution is no longer free. You’re making something you don’t want more expensive. We don’t want pollution, so we’re putting a price on it.”

Brian Lilly writes at Canoe Carbon tax court battle, advantage Ontario. Excerpts in italics with my bolds.

Last week the Ontario and federal governments battled it out in court on the carbon tax and it was the tale of two very different stories.

The opening arguments laid out by lawyers representing the opposing sides showed where they wanted to put their emphasis.

The lawyer for the Government of Ontario argued that the law was unconstitutional while the lawyer for the Government of Canada argued climate change was real, urgent and needed action taken.

One was a legal argument, the other emotional.

Given that judges are human, either could carry the day and anyone saying they know which side will win is fooling you.

Decades of following court cases have taught me that judges are unpredictable.

When he opened his arguments, Josh Hunter, deputy director for the constitutional law branch for Ontario, argued that the Greenhouse Gas Pollution Pricing Act violated federalism and the constitution.

Hunter was clear to say the Ontario government was not challenging whether climate change was real or action needed to be taken, they were challenging how the federal government was attempting to reach their goals.

“What this reference is about is whether Parliament can impose its solution to the problem on the provinces,” Hunter said. “Or whether in a federal country, the provinces have the flexibility under the constitution to choose what best meets their local circumstances as they work together to combat climate change.”

The argument from Ontario is pretty simple and rooted in legal concepts. Whether the judges buy those legal concepts remains to be seen, though I think they should.

The federal act imposing a carbon tax on some provinces and not others is a violation of our federal system, as well as an attempt by the federal government to encroach on provincial jurisdiction and, effectively, a violation of the “no taxation without representation” concept that has been part of our system dating back to Magna Carta.

Did you know the act setting up this system grants to cabinet and cabinet alone the ability to set the rate of the carbon tax and to adjust it as they see fit without passing another vote in Parliament?

Whatever you think of the carbon tax or climate change, that should be enough to have this act and the tax that goes with it declared unconstitutional.

For their part the feds admitted this act does infringe on provincial jurisdiction but then said that it does so minimally and therefore should be allowed.

Besides, they argued, against no one in the room, climate change is real!

“We know that climate change is an urgent threat to humanity,” said federal lawyer Sharlene Telles-Langdon.

“The accumulation of greenhouse gases in the atmosphere causes global warming which is causing climate change and the associated national and international risks to human health and well-being.”

I’m not saying that Telles-Langdon, the general counsel for Justice Canada, didn’t argue constitutional reasons for upholding the law, but she put the urgency of climate change front and centre at every turn.

That is a policy discussion and not a constitutional one, which tells me that even the feds think they have a weak argument on the constitution and want to win on emotion.

What didn’t help the federal argument was the release of the annual report from the federal government on greenhouse gas emissions by the province.

It showed Ontario had reduced GHG emissions by 22% since 2005. Without a carbon tax Ontario is most of the way to meeting its part of Canada’s target of 30% below 2005 levels by 2030.

British Columbia, the province that has had a carbon tax since 2008 and we are told is the model all should follow, is only down 1.5% since 2005.

As a whole Canada is up by 2%.

The question before the court is not one of the impact of climate change or the best way for governments to combat it — those are policy discussions.

The question before the court is one of constitutionality and on that front Justin Trudeau and his Liberals have failed.

Let’s hope the courts are guided by law and the constitution and not emotion or political inclination.

Footnote:

Ross McKitrick explains that economists do favor carbon taxes over cap-and-trade schemes, but on the condition that the tax replaces other fees, taxes and regulations intended to reduce emissions. That condition is never respected by Canada and other nations enacting such. McKitrick writes at Fraser Institute: Trudeau government carbon-pricing plan not in line with Nobel Prize-winning analysis

Canada has a patchwork of highly inefficient regulations with marginal compliance costs, in many cases well in excess of the conventional estimates of the benefits of greenhouse gas emission reductions. But rather than repealing the inefficient regulations and replacing them with a carbon tax, the federal plan involves adding even more regulations to the mix—then sticking a carbon tax on top. This looks nothing like what economists have recommended.

In fact the economics literature provides no evidence this would be an efficient approach, and some evidence it would be worse than regulations alone.

See also:  CO2 ≠ Pollutant

 

 

Climate Kids Spurious Lawsuit Claims

Robert W. Endlich provides the back story on the flimsy complaints from kids suing the US government for the right to a stable climate. He writes at Master Resource Sixty Minutes on the Kiddie Climate Lawsuit: Hypocrisy Squared. Some excerpts in italics wth my bolds to encourage you to go read the whole article.

Plaintiff #1: Kelsey Cascadia Rose Juliana, Oregon

Her activist parents stopped government from managing the forests. Now she blames wildfires on “climate change.”

Figure 1. Left line graph: timber sold and harvested 1905-2016. Right bar graph: dollars spent on firefighting. The red arrows represent the year 1995. The green arrow shows when the Pacific Decadal Oscillation shifted from its warm and wet period in the US West, to its cold and dry period.

Now a college student, Kelsey Cascadia Rose Juliana tells us that the often-severe forest fires that plague the Pacific Northwest are a result of “Climate Change,” because, “that’s what the scientists tell us.” That this might have been a result of the fuel buildups when logging was stopped in the Spotted Owl case has not entered her head; nor the thought processes of Sixty Minutes’ producers; nor the thinking of scientists, teachers, professors and politicians who “taught” her and Sixty Minutes about fires and climate change.

Although many other scientists could have explained the clear link between fuel buildups and massive conflagrations in forests where timber thinning and cutting are prohibited, they were not consulted.

Juliana says, “We have everything to lose if we don’t act on climate change.”

Evidently, no one ever told Juliana it is just as impossible to “stop climate change” as it is to “stop continental drift,” stop the progression of tides, or stop sea level changes and land subsidence. All of these are a result of natural environmental processes that are (or once were) taught in basic Earth Science courses – processes that were carelessly or deliberately left out of the reporting by CBS reporter Steve Croft and CBS Producer Dragon Mihaljevic.

Figure 2. Temperature time series from the GISP2 ice core, showing the past 5,000 years of temperatures with Minoan, Roman, Medieval and Late 20th Century warm periods highlighted [Source]. The likelihood that humans can “stop climate change” that is a natural aspect of Earth’s environment should be obvious.

Plaintiff #2: Levi Draheim, Florida

He lives on a barrier island off the hurricane-prone Atlantic coast. The government is supposed to protect him from storms and rising sea level that have always eroded coastal islands.

Figure 4. Graphic showing the features of Barrier Island Systems from the University of Texas showing they are characteristic of flat coastal plains. That Sixty Minutes should not recognize the peril of exposing permanent resident children to life on barrier islands seems studied ignorance of obvious environmental hazards.

Plaintiff #3: Jayden Foytlin, Louisiana

Her home was flooded in Rayne, LA, about 20 miles from the Gulf Coast and a mere 20 feet above sea level. She claims a right against rainstorms, even though her home is called the “Frog Capital of the World,” with numerous houses elevated on blocks.

Climate Kid 15-year-old Jayden Foytlin, from southern Louisiana, found her home flooded in August 2016. Mr. Mihaljevic speaks of flooding rains in southern Louisiana as somehow an unexpected new phenomenon that young Jayden suddenly experienced when she woke up and “put her foot into climate change.” Not into a frequent weather event on the Louisiana Coast, but into “climate change.” It’s not very subtle propaganda, but most viewers must be prepared, or they will miss it.

She lives in Rayne, LA, about 20 miles from the Gulf Coast and a mere 20 feet above sea level. This is very flat outer coastal plain with poor drainage. That she has no clue that flat-lying land adjacent to the Gulf Coast would be subject to flooding when a hurricane strikes and some 16 inches of rain can occur within two days – is an artifact of inadequate education, and lack of self-awareness that might be attributable to her tender years.

That a fifteen-year old student would have no knowledge of even the possibility of flooding during a hurricane (or spring melts after heavy snows in the Upper Mississippi Basin) strains credulity. But perhaps her expectations were shaped by the 12-year absence of any Category 3-5 hurricane making US landfall between Wilma (2005) and Harvey (2017) – virtually her entire perceptive lifetime.

That the Sixty Minutes report makes it seem as if sixteen inches of rain within two days is somehow related to climate change, rather than a result of the climate and weather we have today, and have had for decades and centuries, is yet another willful study in ignorance by the talking heads seen on MSM and CBS.

Just a few minutes of internet searching will uncover substantial data on extreme rainfall events in the USA. Some are displayed below in Figure 5.
Ironies of History, Concerns for America’s Future

The irony here is too rich not to discuss. Juliana’s parents and environmentalists, along with politicians and courts teamed up a few decades ago to file lawsuits that blocked timber sales and cutting, thereby causing a gradually enormous buildup of diseased, dying and dead trees, brush and other highly inflammable materials.

Huge, deadly conflagrations inevitably ensued – and now the same parties blame climate change for the infernos, enlist their (indoctrinated) children as sympathetic plaintiffs, focus on the kids’ deep fears, and sue fossil fuel producers for damages. Is there such a thing as criminal hypocrisy?

I have no great hopes that lawyers and courts will come up with the right answer.

We need only look at the results of the Massachusetts vs. EPA lawsuit, which was filed by Massachusetts based on the notion that sea level rise is caused by or accelerated by our use of fossil fuels. For “authority,” the U.S. Supreme Court accepted a political document, the IPCC Working Group I report, which considers only human factors in climate change and now asserts that only humans are causing climate change, with natural factors relegated to the sidelines as essentially irrelevant.

That such ignorance, stupidity and anti-science are now central elements of our legal system is simply breathtaking.

Indeed, had EPA attorneys been competent, and had they presented appropriate sea level data and other real-world evidence during trial and on appeal, the Supreme Court could have examined data like that from National Oceanic and Atmospheric Administration’s (NOAA’s) tide gage in Boston harbor. As Figure 8 illustrates, the rate of sea level rise is essentially unchanged over the past century and longer, even as CO2 levels climbed, then accelerated, in their rate of increase, especially since the 1960s.

Carbon dioxide from burning hydrocarbon fuels and human exhalations is the same colorless, odorless gas that plants use, in combination with energy from sunlight, to create carbohydrates. It is not a pollutant, but the elixir of life. Humans, animals and plant life are all carbon-based life forms.

The Supreme Court was just as wrong in its 2007 Massachusetts vs. EPA decision as it was in its infamous 1857 Dred Scott decision – which held that no “negro whose ancestors were imported into [the United States] and sold as slaves” could be an American citizen, and therefore had no standing to sue in federal court. Dred Scott, it can be argued, eventually led to the Civil War.

I have no great hope that today’s Supreme Court or lower courts can be depended on to arrive at the right answer when it comes to science in this case. I just hope cases like the “climate kids” Juliana vs the USA will not cause such energy, economic, societal and political disruption that our nation becomes embroiled in another civil war over our energy, livelihoods, living standards, and whether courts and bureaucrats will have the right to dictate Americans’ rights and choices in these matters.

Robert W. Endlich served as Weather Officer in the USAF for 21 Years. From 1984 to 1993, he provided toxic corridor and laser propagation support to the High Energy Laser Systems Test Facility at White Sands Missile Range. He has published in the technical literature and worked as software test engineer at New Mexico State University. Endlich was elected to Chi Epsilon Pi, the national Meteorology Honor Society, while an Air Force Basic Meteorology student at Texas A&M University. He has a bachelor’s degree in Geology from Rutgers University and a master’s in Meteorology from the Pennsylvania State University.

Footnote: For more on Pacific Northwest forest fires see Why the Left Coast is Burning

For background on the Kids Lawsuit see Supremes Look at Kids Lawsuit

New York AG Foul Play in Climate Case

 

IN DEFIANCE OF JUDGE’S RULING IN CLIMATE CASE, NEW YORK ATTORNEY GENERAL REFUSES TO COMPLY WITH DISCOVERY REQUESTS

Spencer Walrath writes March 12, 2019 at Energy In Depth. Excerpts in italics with my bolds.

(Left) New York Attorney General Barbara Underwood announced her office’s lawsuit against Exxon for climate fraud. October 24, 2018.

(Right) Attorney General of New York, Letitia James took over January 6, 2019 and has opened a civil investigation into President Donald Trump’s business dealings.

The New York Attorney General’s Office (OAG) is refusing to comply with ExxonMobil’s discovery requests even after the New York Supreme Court ruled the company could proceed with discovery related to the AG’s investigation of its climate change disclosures. The company is seeking documents that would support its allegation that the OAG is pursuing its investigation in bad faith.

Since the OAG initiated its investigation into ExxonMobil more than three years ago, its arguments have shifted multiple times, as each of the allegations of fraud has lacked evidence. However, in addition to highlighting the questionable legal agenda, recent court filings demonstrate how the OAG has methodically denied ExxonMobil’s discovery requests in an effort to delay the exercise, possibly in the hope that the OAG can convince the judge to dismiss the company’s defenses.

Right to Discovery Upheld by New York Supreme Court

Justice Barry Ostrager ruled in February that the OAG could file a motion to dismiss ExxonMobil’s defenses, but that in the meantime, “Exxon Mobil is privileged to pursue discovery on its defenses.”

“Civil litigants may not avoid their discovery obligations by challenging the legal viability of an adversary’s claims,” ExxonMobil writes in one letter to the OAG. “Therefore, ExxonMobil maintains that OAG’s objections are improper to the extent they are predicated on a legal challenge to ExxonMobil’s affirmative defenses. OAG may not credibly withhold documents responsive to the Affirmative Defense Requests.”

The OAG’s efforts to hinder ExxonMobil’s right to discovery stand in stark contrast to the actions of the defendant. For instance, the OAG claims that documents requested by ExxonMobil are protected by various privileges, “without identifying each document withheld and the basis for invoking any privilege,” according to one letter from ExxonMobil. In another letter, the company writes that the OAG’s reluctance to turn these documents over suggests that certain privilege assertions appear to be “facially dubious.”

Conversely, ExxonMobil has provided the OAG with more than 2,800 pages of privilege logs. In fact, throughout the entirety of this investigation, ExxonMobil has turned over more than four million pages of documents; so many pages that they would stand taller than the Empire State Building if stacked on top of each other.

New York’s Conflicting Statements

In letters to senior officials in the OAG, ExxonMobil refutes the legal basis of numerous discovery objections and highlight inconsistencies and contradictions made by the state’s top law enforcement office.

A prime example of New York’s attempts to stonewall the company is their failure to provide documents regarding their communications with third parties. According to one letter, ExxonMobil’s lawyers had phone call with the OAG in November during which the OAG denied conducting any “Third-Party Interviews,” stating that they “emphatically and unequivocally informed ExxonMobil that no such interviews had taken place.” However, in a letter written just two weeks later, the OAG contradicted its previous claim, noting that “OAG did communicate with third parties in the course of the investigation” and that it would “respond appropriately to any document requests that Exxon propounds” seeking “notes associated with those communications.”

However, when ExxonMobil asked for the identities of third-parties the OAG communicated with, the OAG claimed that the requested information was shielded by various privileges and protections from disclosure – without articulating how “the mere identity of persons or entities it communicated with constitutes privileged information.” As ExxonMobil states in a letter sent at the end of January:

“Apparently, the clarified understanding OAG claimed it achieved roughly a month earlier vanished by the time OAG responded to our document requests…OAG’s attempt to deflect our document request on vagueness grounds lacks credibility.”

New York Seeks Protective Order

The evidence provided in the dueling letters between ExxonMobil and the New York Attorney General’s Office suggest that the OAG is hoping to run out the clock and convince Justice Ostrager to dismiss the company’s defenses before the OAG runs out of delaying tactics.

“Further delay smacks of gamesmanship and an effort to engage in trial by ambush,” the company’s lawyers wrote in a letter to the OAG.

In early March the OAG notified ExxonMobil of its intent to motion to dismiss the company’s defenses or ask for a protective order, adding that they were no longer obligated to comply with ExxonMobil’s discovery request while their motion is pending. The OAG adds that they intend to continue to collect and review documents in accordance with a severely reduced list of custodians and search terms they proposed to ExxonMobil back in February.

 

Climate Alarmists Circle Around Kid’s Lawsuit

On March 1, 2019 the Ninth Circuit Court was hit with a coordinated deluge of briefs by “Friends of the Court” in support of continuing the kid’s lawsuit. As you will see from the names below, these are actually “Friends of Climate Crisis Inc.” who are fully aware that a dismissal of this case would be a mortal wound to their cash cow. In addition to various and sundry Big Green organizations (Sierra Club, Greenpeace, etc.) there are a distressing number of lawyers who are apparently blinded by climate ideology. More on that later. First the list of briefs dumped on the court March 1 from Climate Change Litigation

  1. Brief of business amici curiae filed in support of plaintiffs-appellees.
  2. Brief filed by Center for International Environmental Law and Environmental Law Alliance Worldwide—US in support of plaintiffs-appellees.
  3. Brief filed by EarthRights International, Center for Biological Diversity, Defenders of Wildlife, and Union of Concerned Scientists in support of plaintiffs-appellees.
  4. Brief of amici curiae environmental history professors filed in support of plaintiffs-appellees’ answering brief.
  5. Brief of amici curiae Food & Water Watch, Inc., Friends of the Earth – US, and Greenpeace, Inc. in support of plaintiffs-appellees.
  6. Brief filed by amicus curiae law professors.
  7. Brief of Leagues of Women Voters filed in support of plaintiffs-appellees.
  8. Brief of members of the United States Congress filed in support of plaintiffs-appellees.
  9. Brief of amicus curiae Niskanen Center filed in support of plaintiffs-appellees.
  10. Brief of amici curiae public health experts, public health organizations, and doctors filed in support of plaintiffs-appellees seeking affirmance.
  11. Brief of amicus curiae Sierra Club filed in support of plaintiffs-appellees.
  12. Brief of amicus curiae Sunrise Movement Education Fund filed.
  13. Brief of amicus curiae Zero Hour on behalf of approximately 32,340 children and young people filed in support of plaintiffs-appellees.
  14. Brief of amicus curiae International Lawyers for International Law filed in support of plaintiffs-appellees.

Now that is a impressive display of the multi-Trillion dollar industry whose skin is on the line in this legal gambit.  Distressingly it seems the legal profession has joined the dash for climate cash, along with doctors, investment managers, and so on.  A previous post (Kangaroo Klimate Kourt Ruling ) gave a synopsis of the argument from the defendants (US Government) for dismissing on appeal the Juliana vs. US lawsuit.  Here are excerpts in italics with my bolds from none other than law professors who are standing on their heads, twisting the law and logic in order to join this children’s crusade. The brief in its entirety is Amicus Curiae Law Professors

Amici law professors are of the view that Plaintiffs have pled legally cognizable causes of action under the Fifth Amendment of the Constitution of the United States.

The Magna Carta produced the Carta de Foresta (Forest Charter) in 1217, which guaranteed the “liberties of the forest and free customs traditionally had, both within and without the royal forests,” and obliged all “to observe the liberties and customs granted in the Forest Charter.”

By way of the common law, the public trust doctrine passed to law in the United States through England and the Romans from natural law: “the following things are by natural law common to all – the air, running water, the sea and consequently the seashore.”

The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), held that the very harms caused by climate change are constitutionally cognizable injury in fact traceable to U.S. policies that can be redressed by a federal court under Article III.

Plaintiffs have alleged and provided evidence of sufficient injury in fact that is fairly traceable to Defendants’ conduct and can be redressed by the court.

The emissions for which Defendants are alleged to be responsible, and their direct effects, far exceed those in Bellon, and even those in Massachusetts v. EPA.

Administrative Procedure Act is not jurisdictional and there is no need for litigants to pursue constitutional claims under it.

Rather than violating separation of powers, the district court’s assertion of jurisdiction over Plaintiffs’ Fifth Amendment claims implicates the core function of the federal courts in our system of separation of powers: to determine the meaning and scope of constitutionally protected fundamental rights. This is, essentially, the power to say what the law is, a power that has been allocated to the federal judicial department since Marbury v. Madison and repeated ever since.

The liberty clauses of the Fifth and Fourteenth amendments include interests of similar fundamental importance to the right to a stable climate system asserted here.

The District Court and Plaintiffs are correct that an unstable climate system can adversely affect many profound extensions of liberty, including occupation, education, family, food, shelter, travel, drinking water, residence, and relationships.

The climate context of this case makes it all the more amenable to judicial resolution. The constitution protects what is of fundamental importance and what cannot be relegated to protection in the political branches alone. A stable climate system satisfies both of these, arguably more than anything else in history. Protection against the degradation of the environment is precisely the kind of thing that the political branches are least likely to be able to protect: it requires long-term thinking for the benefit of those who have no political voice.

Plaintiffs have pled constitutionally cognizable claims under the Due Process Clause of the Fifth Amendment, again for three reasons:
(1) The Fifth Amendment encompasses Plaintiffs’ claim that government action has deprived them of a constitutionally-cognizable liberty interest in a stable climate system;
(2) Plaintiffs’ due process claim for government inaction falls within the “statecreated danger” exception to government immunity;
(3) Plaintiffs have also pled a constitutionally cognizable equal protection claim under the Due Process Clause of the Fifth Amendment.

Lastly, the logical extension of the Defendants’ arguments would virtually immunize government action from judicial review, and therefore should be rejected.

Summary

Of course this brief is written by lawyers who share the suppositions of “consensus” climate scientists like those working with IPCC. Lawyers argue from authorities listed at the beginning of their briefs, those being decided cases setting some kind of precedent relevant to the case at hand. The scientific proof is not questioned, it is assumed as a social proof. In the above brief, 87 law professors agree that everyone knows extreme weather is caused by people burning fossil fuels, which will destroy our planet unless the federal government stops us.

Postscript:

Note also the sad irony of members of Congress filing a brief looking to offload their responsibility onto the courts, and agreeing that Judges should make laws rather than acts passed by elected representatives.