Climate Law 2021 Losing Streak

William Allison provided the 2021 Climate Law roundup in his Energy In Depth article 2021 Revealed Why Climate Litigation Will Continue To Fail. Excerpts in italics with my bolds.

The past year has not been a great one for supporters of the climate litigation campaign.  There were several devastating blows dealt to climate lawsuits, both on the process and the merits, and as Law360 summed up:

“The U.S. Supreme Court expanded the ability for fossil fuel companies to fight climate nuisance lawsuits lodged by state and local governments, and the Second Circuit rejected one such suit outright.”

In response, the plaintiffs’ attorneys have had to call in the reinforcements and place academics on their payroll to help explain why, against all the evidence, these lawsuits aren’t failing. Meanwhile, major activist organizations are holding personal meetings with top government officials in order to recruit them to their side.

We’ve taken the liberty of compiling the climate litigation campaign’s year in review:

Major Defeats

SCOTUS Ruling

One of the most devastating defeats of the nearly decade-long climate litigation campaign came in May when the U.S. Supreme Court overwhelmingly sided with the energy companies on a key procedural question that will help decide if these lawsuits are heard in federal or state court.

From Scotus Blog: 

The Supreme Court on Monday gave a major boost to a group of oil and gas companies that are seeking to stay out of state court and defend a lawsuit against them in federal court instead. The Supreme Court did not weigh in on the merits of the city’s case. Instead, the fight before the court was over procedure.  By a vote of 7-1 (with Justice Samuel Alito not participating), the justices agreed with the companies – which include BP, Chevron and Exxon Mobil – that a federal appeals court had the power to review an entire order sending the case back to state court, rather than only one of the grounds on which the companies relied to move the case to federal court.

The case, BP PLC v. Mayor and City of Council of Baltimore, originated three years ago as a lawsuit by the city of Baltimore seeking to hold the companies responsible for their role in climate change. The city contends that the companies knew that the use of fossil fuels would lead to global warming but continued to produce and sell fossil fuel products anyway.

In a 7-1 decision, the court ruled that the U.S. Fourth Circuit Court of Appeals should have considered all grounds for removal before affirming a lower court’s decision that sent the City of Baltimore’s case back to state court. The decision had significant ramifications for the climate litigation campaign, and cases from California, Colorado and Rhode Island also landed back in the circuit courts for further consideration.

The magnitude of the ruling wasn’t lost on the media. Bloomberg Law observed that the industry now has the “the upper hand” in these cases, while Reuters reported the lopsided decision meant a difficult path now lies ahead for the plaintiffs.

New York City Defeat

On the merits of climate litigation, New York continues to be the poster child for these flailing lawsuits. The New York attorney general’s case against ExxonMobil was decisively defeated in 2019, and in April of this year, the 2nd Circuit affirmed a lower court’s dismissal of New York City’s public nuisance lawsuit, ending the case for good. The court ruled that lawsuits aren’t the proper tool for addressing climate change:

“To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” (emphasis added)

The defeat is a sharp rebuke to outgoing Mayor Bill de Blasio who blatantly admitted the goal of the suit was to put the oil and natural gas industry out of business, saying in 2018, “Let’s help bring the death knell to this industry.”

Despite the loss, less than a month later, de Blasio filed yet another climate lawsuit despite politicians in New York having an 0-3 record, this time focused on consumer deception claims.

King County Withdraws

In the spring of 2018, King County, Washington (home of Seattle) was among the first municipalities to file a climate lawsuit. Just over three years later, it threw in the towel on the case.

In September, the county gave “notice of its voluntary dismissal of this action,” making it the first plaintiff to give up on a lawsuit. The move also represents a blow to plaintiffs’ attorney Matt Pawa, who was a key player at the infamous La Jolla conference in 2012 where the playbook for the entire climate litigation campaign was mapped out and who was at the helm for San Francisco and Oakland’s loss as well as the New York City defeat.

Attribution Proponents Criticize Their Own Science

The use of climate lawsuits has spawned the development of so-called “attribution research” – or the flawed attempt to assign a certain amount of carbon emissions to specific companies.

In June, a group of academics – who are outspoken supporters of the climate litigation campaign – released a report that admits that the climate attribution science currently being deployed by plaintiffs’ attorneys has serious flaws:

“We find that the evidence submitted and referenced in these cases lags considerably behind the state-of-the-art in climate science, impeding causation claims.”

Hey, that’s their words – and it’s very clear why they’re speaking out, and it has nothing to do with the pursuit of greater knowledge through scientific understanding. Instead, it’s all about the litigation. As Friederike Otto, one of the authors of the report, told E&E News just a couple months earlier:

“Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.”

Admitting your made-up science is really about lawsuits + saying the science stinks = a big defeat for climate litigation.

Maryland Mess

When Annapolis and then Anne Arundel County each filed climate lawsuits in quick succession earlier this year, it quickly became clear that both municipalities were recruited to introduce these cases by activist groups Chesapeake Climate Action Network and the Center for Climate Integrity.

In a press conference announcing the lawsuit, Annapolis Deputy Manager for Resilience and Sustainability Jackie Guild said:

“I also received information from my contacts, the Chesapeake Climate Action Network, who is busy with pushing towards energy efficiency and clean fuels. They asked me if I knew about these lawsuits and how they were progressing and I had some knowledge, and they thankfully provided me with some additional knowledge.

I asked them about different lawsuits they were aware of and I started exploring some of the information they provided, and the law firm Sher Edling appeared again and again with the lawsuits that have been brought by the twenty-four other states and cities and counties in the U.S. that are suing the fossil fuel industry, and they by far have the most experience.”

In Anne Arundel, documents uncovered through public records requests reveal further coordination, with one CCAN employing writing to the county:

“CCAN, in collaboration with the Center for Climate Integrity is very interested in facilitating lawsuits for cities in Maryland against fossil fuel companies for the ongoing damages brought on by climate change.”

Active recruitment of potential plaintiffs has become a signature for CCI, which successfully pitched Minnesota Attorney General Keith Ellison in 2019, while the Institute for Governance and Sustainable Development, CCI’s sponsor, is fronting the legal costs for Hoboken, N.J.’s lawsuit.

Summary

So, after several years of waging war in the courtroom without racking up even a single victory, and with a Congress and White House that have expressed a sincere desire to do the things that could actually tackle climate change, why are the proponents of litigation continuing to waste taxpayer resources in this vain effort so a few trial lawyers can hopefully become very rich while accomplishing precisely nothing on climate change?

 

4 comments

  1. HiFast · 16 Days Ago

    Reblogged this on Climate Collections.

    Like

  2. Pingback: Climate Law 2021 Losing Streak – Climate- Science.press
  3. ArndB · 14 Days Ago

    I have followed some proceedings in the USA on climate problems (e.g. City of Oakland v. BP p.l.c; and Juliana v. United States) and I was amazed that the judges and lawyers involved have never questioned whether science has ever been able to define the term “CLIMATE” after the UNFCCC (1992) offers none at all. Instead the convention Art 1, para2, says: “”Climate change” means a change of climate which is attributed directly or indirectly to human activity ….cont.”, which is per se nonsense. It should be an urgent demand to either define the term climate, or to use it scientifically only in a broader sense as suggested a letter to NATUR, 1992, see the full text at;
    http://www.whatisclimate.com/1992-nature.html

    Plaintiffs in Germany were more successful (see excerpts from Quote to Unquote). It is embarrassing that the decision uses the word climate countless times but never questions what the word climate means, whether it can be used scientifically and politically and is only a word from the layman’s sphere (see the notes below).
    QUOTE
    The German FEDERAL CONSTITUTIONAL COURT made a far reaching decision concerning climate change last year, never asking whether the term makes any sense.
    From the: “Headnotes to the Order of the First Senate of 24 March 2021” para 1;
    The protection of life and physical integrity under Art. 2(2) first sentence of the Basic Law encompasses protection against impairments of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause. The state’s duty of protection arising from Art. 2(2) first sentence of the Basic Law also encompasses the duty to protect life and health against the risks posed by climate change. It can furthermore give rise to an objective duty to protect future generations.
    From the Reasons; Sec. I.:
    1. The Federal Climate Change Act of 12 December 2019 responds to the need – as seen by the legislator – for greater climate action efforts (cf. deleted).
    a) The purpose of the Act is to afford protection against the effects of worldwide climate change by ensuring that the national climate targets are reached and the European targets are met (§ 1 first sentence KSG). Pursuant to § 1 third sentence KSG, the legal basis of the Act is the obligation under the Paris Agreement (cf. Act of 28 September 2016 on the Paris Agreement of 12 December 2015, (cont…///)
    (LINK: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en.html )
    UNQUOTE
    The most urgent demand should be that climate science is using terms, which names the facts clear and understandable, because weather and climate are everyday slang words and misleading when used by science. Disused at:
    http://www.whatisclimate.com/
    Or
    “Climate is a big issue, but science cannot say what it is”.; discussed here
    https://oceansgovernclimate.com/climate-is-a-big-issue-but-science-cannot-say-what-it-is/

    Best wishes for a healthy and fulfilling YEAR 2022!

    Like

    • Ron Clutz · 14 Days Ago

      Thanks Arnd for stopping by and for this comment. And also thanks for you continuing to protest lawyers and policymakers talking and writing without defining their terms. It all produces a hot mess where no issue can be engaged or resolved because the parties are free to equivocate to avoid being cornered. Only colder weather can save us, yet that is not something to be desired for any other reason.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s