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)

When launching a boomerang, watch out when it comes back on you.

This post provides further perspective and some legal background regarding the lawsuit campaign by Hansen et al fronted by idealistic children.  First an article at Investor’s Business Daily points out how the lawsuit is not in the best interest of present or future generations: The Children’s Climate Lawsuit Against The Children  Excerpts with my bolds below from Benjamin Zycher Jan. 12, 2018

Litigation may be as American as apple pie, but some lawsuits are so destructive that they stand out even among the hugely expensive wreckage wrought by our legal system. The most prominent current example is the “children’s” climate lawsuit (Juliana v U.S.): A group of kids, including “future generations, through their guardian Dr. James Hansen,” claim that the government’s actions and failures to act have caused climate change, thus violating the youngest generation’s constitutional rights to life, liberty and property, and have failed to protect essential public trust resources.

First the Policy Concerns the People’s Interest not the Judges

I leave the numerous legal issues to the lawyers (see backgrounder further on), although precisely how the ineffable Hansen came to be the “guardian” for future generations is a question both fascinating and amusing. Instead, it is crucial to recognize first that the fundamental policy assumption underlying this lawsuit — we can make “the children” better off by making them poorer — is preposterous.

More generally, the lawsuit is a blatant attempt to circumvent democratic processes, in terms of both the Congressional power to make policy and the authority of the president to implement it.

Climate policies — mandated reductions in greenhouse gas (GHG) emissions — by and large are energy policies, and the constitution is silent on which such policies would serve the interests of future generations, or on the appropriate tradeoffs between the interests of “the children” and the adults alive in the here and now.

Those are policy questions, and this attempt to induce judges to interfere with Congress’ legislative powers is deeply destructive of our constitutional institutions. Should “the children” not be concerned about that? Why are “the children” not suing about, say, the national debt?

Second CO2 is Not a Pollutant

The claim about the protection of “essential public trust resources” boils down to an assertion that carbon dioxide is a “pollutant.” No, it is not: A certain minimum atmospheric concentration of it is necessary for life itself. (Merely look at NASA’s time-lapse photo of the earth’s greening over the last 30-plus years.) By far the most important GHG is water vapor; does anyone claim that it is a “pollutant?” Obviously not, and not because ocean evaporation is a natural process; so are volcanic eruptions, and the massive amounts of effluents emitted by volcanoes are pollutants by any definition.

Third Energy Poverty Shortens Lives 

Consider a homo sapiens baby born in a cave some tens of thousands of years ago, in a world with environmental quality effectively untouched by mankind. That child at birth would have had a life expectancy on the order of ten years; had it been able to choose, it is obvious that it willingly would have given up some environmental quality in exchange for better housing, food, water, medical care, safety, ad infinitum. That is, it is obvious that people willingly choose to give up some environmental quality in exchange for a life both longer and wealthier.

The Lawsuit Will Make Future Generations Worse Off

In other words, the children’s lawsuit is inconsistent with actual interests of future generations, as the obvious underlying assumption is that future generations would prefer the purest possible environmental quality. That is not correct: Future generations want to inherit the most valuable possible capital stock in all of its myriad dimensions, among which environmental quality is one important component among many, and among all of which there are tradeoffs that cannot be avoided.

Is it the position of the attorneys representing “the children” that making energy more rather than less expensive unambiguously would make future generations better off? In order for future generations to receive the most valuable possible capital stock, the current generation must consume and invest resources most productively.

If regulatory and other policies implemented by the current generation yield less wealth now and a smaller total capital stock for future generations, then more resource consumption and more emissions of effluents currently would be preferred from the viewpoint of those future generations.

Lawsuit Asserts Facts Not in Evidence

That is only the beginning of the problematic factual assertions and assumptions underlying the children’s lawsuit. The measurable effects of increasing GHG concentrations are far smaller than the climate models would lead one to believe. The degree to which recent warming has been anthropogenic is unsettled in the scientific literature; and the Intergovernmental Panel on Climate Change (IPCC) in its fifth assessment report (AR5) has reduced its estimated range of the effect in 2100 of a doubling of GHG concentrations from 2.0–4.5 to 1.5–4.5 degrees C.

There actually is little evidence of strong climate effects attendant upon increasing GHG concentrations, in terms of sea levels; Arctic and Antarctic sea ice; tornado activity; tropical cyclones; U.S. wildfires; drought; and flooding. IPCC in the AR5 is deeply dubious (Table 12.4) about the various severe effects often hypothesized (or asserted) as future impacts of increasing GHG concentrations.

One might assume that the facts underlying a lawsuit ought to be consistent with its central claims; one would be wrong. And wrong again if one assumes that the policy objective would make an actual difference: The Paris agreement with full U.S. participation would reduce temperatures by 2100 by seventeen one-hundredths of a degree. The U.S. contribution would be fifteen one-thousandths of a degree. Add another one one-hundredth of a degree if you believe that the Obama pseudo-agreement with China is meaningful. (It is not.)

Children Used by Environmental Ideologues

Precisely what is the children’s climate lawsuit trying to achieve? It cannot be protection of our constitutional principles, or protection of future generations, or environmental improvement. Only one possibility remains: It is part of the long-term effort by the environmental left to use any means possible to exert control over other people’s property, economic choices, and lifestyles. The plaintiff attorneys are happy to participate in a litigation process in which “the children” are irrelevant.

Legal Context

For those interested in the legalities Andrew Varcoe provides a Legal Backgrounder published at the Washington Legal Foundation Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?  Excepts below with my bolds.

Americans have many views on the causes and severity of climate change—and on the pros and cons of conceivable policy responses. But most Americans would likely react with some measure of surprise to one suggested solution—the notion that individual citizens have a constitutional right, enforceable by judicial diktat, to a stable climate system. Surprising or no, this suggestion has landed in the lap of the U.S. Court of Appeals for the Ninth Circuit. In June, the Department of Justice (DOJ) filed a mandamus petition in that court in Juliana v. United States, a lawsuit pending in federal district court in Oregon.

The Juliana plaintiffs claim a substantive due-process right— a fundamental, unenumerated right—to a stable climate. They also argue that the federal government has an enforceable public-trust duty to protect the atmosphere and other resources from climate change. DOJ’s mandamus petition asks the Ninth Circuit to direct the district court to dismiss the Juliana case. Although the Trump Administration filed the mandamus petition, the Obama Administration had asserted the same basic jurisdictional and merits arguments before the district court.

The Ninth Circuit may rule on the petition soon. While this litigation presents several important questions, this Legal Backgrounder focuses only on the core merits question whether there is a fundamental, unenumerated right to a stable climate system protected by the Due Process Clause of the Fifth Amendment.

1. It seems unlikely that a Ninth Circuit panel would recognize a constitutional right to a stable climate system.

A mandamus petition is a request for extraordinary relief. The Ninth Circuit has various options for ruling on the government’s petition without reaching the merits. That said, if the court were to reach the merits now, it seems likely that the court would hold that there is no fundamental right to be protected against climate change. As a general matter, federal courts are rightly reluctant to create or recognize new fundamental rights protected by substantive due process. As the Supreme Court has said, judges must “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed” into judges’ “policy preferences,” and place great public questions “outside the arena of public debate and legislative action.

Older lower court decisions are consistent with the view that interests related to pollution and climate change are not protected by substantive due process. See Nat’l Sea Clammers Ass’n v. City of New York, 616 F.2d 1222, 1238 (3d Cir. 1980) (Constitution protects no “right to a pollution-free environment”), vacated in part on other grounds sub nom. Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981).

Prudential factors militate against crafting a new constitutional right in the air pollution context. Congress has already enacted a comprehensive statute to regulate air pollution—the Clean Air Act (CAA)—and has amended it over several decades. After the Supreme Court held that the Act authorizes federal regulation of greenhouse gas (GHG) emissions, see Massachusetts v. EPA, 549 U.S. 497, 532 (2007), the Environmental Protection Agency (EPA) began regulating such emissions. Despite recent political changes, EPA has not proposed to stop regulating GHG emissions.

Congress is free to override federal common law, but not a constitutional precedent. For example, the plaintiffs want the district court to determine “the minimum safe level of atmospheric CO2 concentrations” and the “timeframe” for achieving that level. But what if the court misses the mark in doing so? Congress and the President would have no power to override such an error.

2. It also seems unlikely that the Ninth Circuit would extend the state-created danger doctrine to climate change.

The Juliana plaintiffs invoke a different strand of substantive due process when they rely on the state-created danger doctrine. Under that doctrine, a governmental entity takes on a constitutional duty to an individual whom it places in peril in deliberate indifference to his or her safety.5 The Juliana plaintiffs argue that the defendants or their predecessors assumed such a duty when they “authorized, permitted, and promoted the extraction, transportation, and combustion of fossil fuels for decades with full knowledge that such activities would manifest unique and personalized injuries to individuals.” This argument could be seen as an extrapolation from the constitutional rights to life, liberty, and property. Nonetheless, as applied to climate change, the argument is fundamentally problematic for several reasons.

First, the state-created danger doctrine covers dangers attributable to government actions, not to government omissions. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195, 197-203 (1989). The doctrine provides no remedy for failures to regulate private activity. Second, even when limited to government actions, the plaintiffs’ argument would expand the state-created danger doctrine so radically as to make it unrecognizable and unworkable. The argument proves too much. Courts have applied the doctrine to government actions that cause direct physical harm to individuals— typically, actions by law enforcement officers or other government agents. But climate change is immeasurably more complex than such incidents. Climate change is a kind of global mass tort, with diffuse and innumerable causes and impacts, involving a very large number of potential wrongdoers and victims.

Andrew R. Varcoe is a Partner with Boyden Gray & Associates, PLLC, in Washington, D.C. The firm’s clients and lawyers have a mix of views on climate change policy issues. Mr. Varcoe thanks his colleagues, and Professor Douglas A. Kysar, for their contributions to the ideas in this Legal Backgrounder; he alone is responsible for any errors.

Footnote:  More on Children’s Trust and Lawsuits see Climate War Human Shields

Wheels of justice grind slow but grind fine — Sun Tzu, Art of War

An update on pipeline disruption cases is provided by Blake Nicholson, Associated Press, January 9, 2018, in Great Falls Tribune: Court cases from coordinated 2016 pipeline protest delayed. Excerpts below with my bolds.

BISMARCK, N.D. — Several court cases stemming from a coordinated pipeline protest in four states have been delayed, including one where an appeals court is deciding whether to allow two women to argue their law-breaking was necessary to prevent a greater harm.

Eleven activists with the group Climate Direct Action were arrested on Oct. 11, 2016, when they tried to either shut down pipelines in North Dakota, Minnesota, Montana and Washington state or film the attempts. The activists said they were protesting fossil fuels and supporting people demonstrating against the Dakota Access oil pipeline, which was still under construction.

The activists broke into private property and turned shutoff valves at five pipelines that moved oil from Canada to the U.S.

In Minnesota, prosecutors have asked a state appeals court to reverse a judge’s ruling that would allow two women to use the so-called necessity defense. The defense is popular among environmental activists who argue that global warming caused by fossil fuels is the greater harm, though legal experts say it’s a long-shot defense.

The appeal delayed the December trial of Seattle-area residents Emily Johnston and Annette Klapstein, who are accused of closing valves on two pipelines in northwestern Minnesota. The trial hasn’t been rescheduled, and their attorney said he doesn’t expect a resolution on the appeal until spring.

Sentencing has been delayed for two men who were barred from using necessity-defense arguments. Leonard Higgins of Portland, Oregon, was convicted in November of criminal mischief and trespassing in Montana; his January sentencing was pushed to March 20 after his attorneys asked for more time, according to court documents. Seattle resident Michael Foster also was set for sentencing this month in North Dakota but the hearing was moved to February because of a timing conflict.

A Washington state case was resolved last year when Ken Ward, of Corbett, Oregon, was convicted of burglary and sentenced to two days in jail plus community supervision and community service. He, too, wasn’t allowed to use the necessity defense.

The six other arrested activists were accused of filming the vandalism. Prosecutors dropped charges against two of them in Washington. Trials are pending for two others in Minnesota and one in Montana, and one activist is to be sentenced in North Dakota the same day as Foster.

Summary

Actually, I don’t mind them taking it slow, so long as they get it right.  Still, putting global warming on trial during this winter weather would have provided at least poetic justice, less so in springtime.

Background:

On civil disobedience by climate activists:

A Valve Turner’s Trial: Mostly guilty

Minnesota judge allows ‘necessity defense’ in pipeline case

On the Judiciary unprepared for such cases: Critical Climate Intelligence for Jurists (and others)