Climate Initiatives

US State Attorneys Push Back on Climate Lawsuits

Posted on by Ron Clutz

A friend of the court brief has been filed by Attorneys for States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming.  They urge the federal Ninth District Court to dismiss the lawsuit against five major oil companies for claimed climate damages.  Previous posts discussed the scientific briefs against these lawsuits, and this post adds the legal reasons why these court actions are unreasonable.

An article in Forbes summarizes: As Boulder Sues, 15 States – Including Colorado – Oppose Global Warming Lawsuits

On April 19, Colorado Attorney General Cynthia Coffman joined 14 colleagues in a friend-of-the-court brief filed in the California litigation that finds fault with the idea of using public nuisance lawsuits to address climate change. The text of the pleading is AMICUS BRIEF OF INDIANA AND FOURTEEN OTHER STATES IN SUPPORT OF DISMISSAL  Excerpts in italics below from Forbes with my bolds.

“Plaintiffs’ theory of liability involves nothing more specific than promoting the use of fossil fuels,” the brief says.

“As utility owners, power plant operators and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”

For now, those political subdivisions are plaintiffs – and the newest are the city and county of Boulder and San Miguel County. Their lawsuit was filed April 17 by two environmental firms and a Denver environmental/personal injury lawyer.

According to the Boulder County website, private attorneys will charge up to a 20% contingency fee. The City of Boulder has not yet produced a copy of its contract with these attorneys. Legal Newsline requested it April 18.

The City of Boulder was tight-lipped in the months leading up to the lawsuit, saying only that the City Council had approved a plan to hire a Washington, D.C., firm on a pro bono basis.

Like the California cases, Boulder’s makes a claim under the public nuisance theory. Climate change has caused a nuisance in the Boulder area, and the plaintiffs have to mitigate its impacts, the suit alleges.
The states, led by Indiana, say that theory isn’t good enough. Federal judges should not be asked to establish emissions policy, the brief says.

“But the questions of global climate change and its effects – and the proper balance of regulatory and commercial activity – are political questions not suited for resolution by any court,” the states say.
“Indeed, such judicial resolution would trample Congress’ carefully calibrated process of cooperative federalism where States work in tandem with EPA to administer the federal Clean Air Act.”

Background Is Global Warming A Public Nuisance?

Footnotes:  Notable quotes in italics from the State Attorneys’ brief (with my bolds):

To permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials. Federal courts should not use public nuisance theories to confound state and federal political branches’ legislative and administrative processes by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-bycase basis under the aegis of federal common law.

As utility owners, power plant operators, and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.

Similarly, they request relief in the form of an “abatement fund remedy” rather than outright abatement, but the Ninth Circuit has already said that the remedy requested is irrelevant to the displacement issue. Ultimately, neither stratagem changes the essential nature of Plaintiffs’ claim or of the liability that they are asking the court to impose—liability that could serve as the predicate for myriad remedies in future cases or even in this one.

Plaintiffs are asking the court to order Defendants to pay to build sea walls, raise the elevation of low-lying property and buildings, and construct other infrastructure projects necessary to combat the effects of global climate change for the major cities of Oakland and San Francisco. Such a remedy could cost several billion dollars and seriously impact Defendants’ ability to provide energy to the rest of the country.

As the weight of authority demonstrates, Plaintiffs claims in this case may be styled as torts, but they are in substance political, and thus nonjusticiable.

To determine liability, the court would need to determine that plaintiffs have a “right” to the climate—in all of its infinite variations—as it stood at some unspecified time in the past, then find not only that this idealized climate has changed, but that Defendants caused that change through “unreasonable” action that deprived Plaintiffs of their right to the idealized climate.

Plaintiffs’ desired remedies are nothing more than a form of regulatory enforcement and creation of policy through the use of judicial remedies. Plaintiffs seek to inject their political and policy opinions into the national regulatory scheme of energy production, promotion, and use. Yet all States play a critical regulatory role within their borders, and Congress has leveraged and augmented that authority by way of the Clean Air Act, a cooperative federalist program designed to permit each State to achieve its optimal balance of regulation and commercial activity. Cooperative federalism in the environmental and energy production policy arena underscores the political nature of this case.

Thus, through the cooperative federalism model, States use their political bodies to secure environmental benefits for their citizens without sacrificing their livelihoods, and each does so in a different fashion—a natural result of the social, political, environmental, and economic diversity that exists among States. A plan to modify greenhouse gas emissions that is acceptable to California or Vermont may be unacceptable to Indiana, Georgia, or Texas, for example.

Plaintiffs are worried not about national climate change, but about global climate change. And, indeed, the global nature of concerns over anthropogenic climate change has spawned a variety of treaties and other international initiatives aimed at addressing air emissions. This activity has been multifaceted, balancing a variety of economic, social, geographic, and political factors and emphasizing multiparty action rather than arbitrarily focusing on a single entity or small group of entities.

The past two decades have thus seen four Presidencies with widely divergent views of what the United States’ foreign policy on climate change and greenhouse gas emissions should be. These shifts in direction further demonstrate the political nature of environmental and fossil fuel regulation and reaffirm the need for such decisions to be the subject of political debate and accountability.

Focusing on energy production rather than emissions does not make this case any less inherently political. If anything, it underscores the political nature of the global climate change problem by casting a spotlight on yet more political choices that bear on the issue. In some instances States themselves promote the very energy production and marketing targeted in this case. For example, the California State Oil and Gas Supervisor is charged with “encourag[ing] the wise development of oil and gas resources” and “permit[ing] the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons[.]” Cal. Pub. Res. Code §§ 3004, 3106(b).

California cannot evade the application of the Commerce Clause by using common law rather than state statutory law to regulate commerce occurring outside its borders. The constitutional restrictions on California’s ability to regulate out-of-state commerce “reflect the Constitution’s special concern both with the maintenance of a national economic union unfettered by state imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.” Healy v. Beer Inst., Inc., 491 U.S. 324, 335–36 (1989).

At the most basic level, such remedies represent an effort by one state to occupy the field of environmental and energy production regulation across the nation, and to do so by superseding sound, reasonable, and longstanding standards adopted by other states in a system of cooperative federalism and by the federal government. Indeed, even if the Plaintiffs’ desired remedies do not directly conflict with other states’ existing laws and regulatory framework, it nonetheless would “arbitrarily . . . exalt the public policy of one state over that of another” in violation of the Commerce Clause.

By asking a single federal judge to impose energy production penalties on defendant companies, each of which is presumably compliant with the regulations of each state in which it operates, Plaintiffs are attempting to export their preferred environmental policies and their corresponding economic effects to other states. Allowing them to do so would be detrimental to state innovation and regional approaches that have prevailed through the political branches of government to date. California’s attempt to regulate out-of-state production of fossil fuels and by suing producers with common law cause of action implicates the constitutional doctrine against extraterritorial regulation. This is yet another reason to reject Plaintiffs’ novel theory of liability.

Alarmists Fret, while Farmers Adapt

Posted on by Ron Clutz

 

Update April 18 at End

This latest alarm is about the eastward shift of the above climate zone boundary, which historically was located upon the 100th meridian. The narrative by alarmists is along the lines of “OMG, we are screwed because drylands are replacing wetlands. There goes our food supply.” Some of the story headlines are these:

As World Warms, America’s Invisible ‘Climate Curtain’ Creeps East

The arid US midwest just crept 140 miles east thanks to climate change

America’s Arid West Is Invading the Fertile East

A major climate boundary in the central U.S. has shifted 140 miles due to global warming

From USA Today

Both population and development are sparse west of the 100th meridian, where farms are larger and primarily depend on arid-resistant crops like wheat, the Yale School of Forestry & Environmental Studies said. To the more humid east, more people and infrastructure exist. Farms are smaller and a large portion of the harvested crop is moisture-loving corn.

Now, due to shifting patterns in precipitation, wind and temperature since the 1870s — due to man-made climate change — the boundary between the dry West and the wetter East has shifted to roughly 98 degrees west longitude, the 98th meridian.

For instance, in Texas, the boundary has moved approximately from Abilene to Fort Worth.

According to Columbia University’s Earth Institute, Seager predicts that as the line continues to move farther East, farms will have to consolidate and become larger to remain viable.

And unless farmers are able to adapt, such as by using irrigation, they will need to consider growing wheat or another more suitable crop than corn.

“Large expanses of cropland may fail altogether, and have to be converted to western-style grazing range. Water supplies could become a problem for urban areas,” the Earth Institute said.

The studies appeared in the journal Earth Interactions, a publication of the American Meteorological Society.

What They Didn’t Tell You:  Context Makes All the Difference

This is another example of misdirection to push FFF (Fear of Fossil Fuels) by ignoring history and human ingenuity, while kowtowing to climate models as infallible oracles. The truth is, we didn’t get here by being victims, and lessons from the past will serve in the future.

First, the West Was Settled by Adaptive Farmers

One of the best researchers and historians is Geoff Cunfer, who with Fridolin Krausmann wrote Adaptation on an Agricultural Frontier: The Socio-Ecological Metabolism of Great Plains Settlement, 1875-1936.  Excerpts with my bolds.

The most important agricultural development of the nineteenth century was a massive and rapid expansion of farmland in the world’s grasslands, a process that doubled global land in farms. Displacing indigenous populations, European settlers plowed and fenced extensive new territories in North America’s Great Plains, South America’s campos and pampas, the Ukrainian and Russian steppes, and parts of Australia and New Zealand. Between 1800 and 1920 arable land increased from 400 million hectares to 950 million, and pasture land from 950 to 2,300 million hectares; much of that expansion occurred in grasslands. These regions became enduring “breadbaskets” for their respective nations and fed the nineteenth century’s 60 percent increase in world population. Never had so much new land come into agricultural production so fast. This episode was one of the most extensive and important environmental transformations in world history.

Most agro-ecologists and sustainability scientists focus on the present and the future. This article adapts their approach in order to understand agricultural change in the past, integrating socio-economic and physical-ecological characteristics that reveal both natural and cultural drivers of change. Socio-ecological profiles embrace land use, soil nitrogen, and food energy as key characteristics of agricultural sustainability. Ten descriptive measures link biophysical and socio-economic processes in farm communities to create socio-ecological profiles revealing human impacts on nature as well as environmental endowments, opportunities, constraints, and limitations that influenced settlers’ choices.

Tracing these characteristics from the beginning of agricultural colonization through sixty years reveals a pattern of expansion and growth, maturity, and adaptation. Agricultural systems are seldom static. Farmers interact with constantly varying natural forces and with social processes always in flux. The Kansas agricultural frontier reveals adjustments and readjustments to an ever-changing world and, especially, to environmental  forces beyond settlers’ control. Three distinct socio-ecological profiles emerged in Kansas: a) high productivity mixed farming; b) low productivity ranching; and c) market-oriented dryland wheat farming. The following narrative addresses each profile in chronological order and from east to west across the state, revealing settlers’ rapid adaptation to environmental constraints; accompanying figures allow simultaneous spatial comparison.

Second, Farming was Sustained through Environmental Changes

Cunfer wrote a book On the Great Plains: Agriculture and Environment review here).  Some excerpts with my bolds.

Though it may seem inconceivable to characterize the history of Great Plains land use as stable, Cunfer uncovers a persistent theme in his research: Great Plains farmers surprisingly found an optimal mix between agricultural uses (in particular, plowing vs. pasture) quickly and maintained this mix within the limits of the natural environment for a surprisingly long period of time. Only occasionally, in particular during the mid 1930s, did farmers push the boundaries of this regional environment; however, they quickly returned to a “steady-state” land-use equilibrium.

In particular, Cunfer blends together these two extreme approaches and summarizes Great Plains agricultural history in three components: (1) the rapid build-up of farm settlements from 1870-1920, which substantially altered the surrounding environment; (2) relative land-use stability from 1920 to 2000; and (3) the occasional transition in agricultural techniques which resulted in a quick shift away from this land-use equilibrium.

The Dust Bowl still remains an important environmental crisis and it is often a rallying point for federal government conservation programs. Cunfer adds to this literature by applying GIS maps to the entire Great Plains and interpreting comparative sand, rainfall, and temperature differential data to conclude that “human land-use choices were less prominent in creating dust storms than was the weather” (p. 163).[1] The localized portion of the Great Plains where dust storms were magnified contained substantially more sandy soil, only a small percentage of land devoted for crops, and the greatest degree of rainfall deficits from past trends. This non-exploitative argument contradicts the conventional wisdom which maintains that a massive plow-up followed the trail of increasing wheat prices and low cost of farming.

Our Ancestors Prevailed and We have Additional Advantages

Just as pioneer colonization inscribed a new cultural signature onto a plains landscape constructed by Native Americans, industrial agriculture began to over-write the settlement-era landscape. Fossil fuel-powered technologies brought powerful new abilities to deliver irrigation water, apply synthetic fertilizers, control pests, and reconstruct landscapes with tractors, trucks, and mechanical harvesters. A new equilibrium between environmental alteration and adaptation emerged. Industrial agriculture’s remarkable ability to alter and manage natural systems depends on a massive mobilization of fossil fuel energy. But until the early twentieth century farmers accommodated and adapted to natural constraints to a considerable extent.

Fig. 1 An energy model of agroecosystems, optimized for estimation based on historical sources (adopted from Tello et al. 2015)

Summary

It is disrespectful and demeaning for the activist media types to pretend we are unprepared and incapable of adapting to changing environmental and climate conditions.  Present day knowledge of agroecosystems is highly advanced, supported by modern technologies and experience with crop selections and choices for diverse microclimates.  Confer and colleagues discuss the possibilities in a paper Agroecosystem energy transitions: exploring the energy-land nexus in the course of industrialization

A previous post at this blog was Adapting Works! Mitigating Fails. discussing how farmers pushed the extent of wheat production 1000 km north through adaptation and innovation.

Warming has produced bumper crops most everywhere.

Update April 18

Dr. Roy Spencer has also weighed in on these scare stories, and adds considerable perspective.  He challenges the claim that the eastward shift has happened.

Since I’ve been consulting for U.S. grain interests for the last seven or eight years, I have some interest in this subject. Generally speaking, climate change isn’t on the Midwest farmers’ radar because, so far, there has been no sign of it in agricultural yields. Yields (production per acre) of all grains, even globally, have been on an upward trend for decades. This is fueled mainly by improved seeds, farming practices, and possibly by the direct benefits of more atmospheric CO2 on plants. If there has been any negative effect of modestly increasing temperatures, it has been buried by other, positive, effects.

And so, the study begs the question: how has growing season precipitation changed in this 100th meridian zone? Using NOAA’s own official statewide average precipitation statistics, this is how the rainfall observations for the primary agricultural states in the zone (North and South Dakota, Nebraska, Kansas, and Oklahoma) have fared every year between 1900 and 2017:

100th-meridian-states-jja-precip

What we see is that there has been, so far, no evidence of decreasing precipitation amounts exactly where the authors claim it will occur (and according to press reports, has already occurred).

Spencer’s post is The 100th Meridian Agricultural Scare: Another Example of Media Hype Exceeding Reality

 

 

 

Why People Rely on Pipelines

Posted on by Ron Clutz

The Trans-Alaska Pipeline system’s 420 miles above ground segments are built in a zig-zag configuration to allow for expansion or contraction of the pipe.

In their near-religious belief about demonic CO2, activists are obstructing construction or expansion of pipelines delivering the energy undergirding our civilization.  The story is explained by James Conca in a recent Forbes article Supersize It! Building Bigger Pipelines Over Old Ones Is A Good Idea Excerpts below with my bolds.

The idea of replacing an older small pipe with a wider new pipe is not new. But it really makes a difference when applied to the oil and natural gas pipelines that crisscross North America.

The concept of supersizing pipelines is taking hold in the United States and Canada to address the growing dearth of pipelines in areas where oil production is increasing but can’t get to the refineries in the Gulf.

At the same time, natural gas use is increasing in places that don’t have many pipelines and where the public is strongly against building new pipelines.

A bigger pipeline along the same route as the older smaller one is cheaper to build than a bunch of new small ones. It also falls under the existing permits and rights-of-way of the old pipe. And the public doesn’t have to approve any new pipeline routes.

Supersizing also increases safety and ensures less environmental impact since you’re not building additional lines, but replacing an old one with a new one, and older lines are more likely to leak or fail completely, like the Colonial Pipeline Spill.

Not only do we need more crude oil pipelines, the ones we have quite old. But they can be supersized without finding and permitting new routes, which saves a lot of money and time and doesn’t increase their environmental footprint. Of course, if there are no pipelines to supersize, like in much of New England and New York, that’s a whole other problem. Photo is of a section of the Alaska Pipeline.

Increasing the diameter of a pipe increases the flow within it much more than you might think. In fact, the volume of flow per minute goes as the fourth power of the change in diameter. This means, if you double the diameter, you increase the flow by 16 times – (2^4 = 2 x 2 x 2 x 2 = 16).

Enbridge is a good example. The company has replaced a 26-inch-diameter shale gas line running from Pennsylvania into New England with a 42-inch line. That doesn’t seem like much, it’s only 1.6 times as big. But raised to the power of four, this new pipeline can carry six times as much gas as the old one.

‘Once the pipe is in the ground, you can do a lot of things: reverse flows, expand it, optimize it,’ said Al Monaco, President and Chief Executive of Enbridge.

These types of upgrades have essentially made the controversial portion of the Keystone XL pipeline unnecessary.

Of course, if you don’t have old pipelines to begin with, supersizing doesn’t help. Parts of the U.S. simply need more pipelines, especially where fracking has unleashed huge amounts of oil and gas in areas that didn’t have a lot pipelines to begin with.

New England is a good example.

New England is closing their nuclear plants faster than you can say “who cares about science.” They are replacing them with natural gas and renewables. But there are hardly any gas pipelines in the region. They are forced to import liquefied natural gas from places like Russia or use dirty oil plants when demand is high, like this last winter. When this happens the customers in New England pay a high price for their electricity, sometimes ten times the normal price.

Yet, the people of New England do not want more gas pipelines.

The citizens of New England also want more renewables, whose electricity has to be imported into the northeast from other regions, especially hydropower from Canada. But this requires installing high voltage transmission lines which the public keeps voting down.

When the public does not listen to scientists and experts, things don’t go well. This problem is engulfing the energy sector. The public seems to care about climate change, but don’t want to do what the climate scientists advise – to increase nuclear and renewables – because they reject them, or their infrastructure requirements, out of ignorance.

And they aren’t putting solar panels on their roofs very much either.

So next year, they will wonder why electricity costs keep going up, their carbon emissions keep going up, and their black-outs keep getting longer.

Natural gas requires the least steel and concrete of any energy source, is cheap and quick to build, has cheap fuel, and is beloved by state legislatures. But you need pipelines to deliver it, and no one wants them in their backyard. Supersizing helps with this problem.

Natural gas is the fastest growing energy source in America. Replacing coal plants with gas plants is the only reason our carbon emissions are at a 27-year low. It’s the easiest power plant to build, requires the least amount of steel and concrete (see figure above), is the easiest to permit, will have cheap fuel for decades, and is vastly preferred over coal.

However, it requires pipelines to deliver the gas and no one seems to like them. You can ship gas as liquefied natural gas (LNG), which is what happens a lot in the New England, but that’s three times more expensive and we have very limited LNG facilities.

This is a classic case of the public misunderstanding how the real world works. These issues are somewhat complex and you have to juggle a lot of conflicting issues. Our oil pipelines themselves are generally old (see figure above). Half of them are older than 40 years. Some date from before World War One.

They need to be replaced, and new ones built, or we risk the very environmental damage feared by those who don’t want them at all. Just supersizing the oldest half would be tremendous, and remove most of the need for additional pipelines.

Our pipelines, refineries and transmission lines are all at capacity. When problems occur, there’s no back-up plan. We have over 3,000 blackouts a year, the highest in the developed world. It’s why the American Society of Civil Engineers gave America a D+ on our 2017 Infrastructure Report Card.

Somewhere around 1985, we became the world’s richest, most powerful, greatest nation in the history of the world. But we still have to work hard to remain the best. It doesn’t just maintain itself. And infrastructure is where long-term neglect first shows, often catastrophically.

So we need to upgrade our transmission lines and transformers, build new non-fossil power plants and supersize our pipelines.

We can’t afford not to.

Dr. James Conca is an expert on energy, nuclear and dirty bombs, a planetary geologist, and a professional speaker.

Footnote:

Dr. Conca is writing from an American perspective, while in Canada a major pipeline supersizing project is being resisted by one province, British Columbia, despite the pipeline gaining federal approval after a long, tortuous environmental assessment process.

The BC Premier is holding power in a coalition government beholden to a few Greens, who are adamant about “keeping it in the ground.”

Latest news at The many ways B.C. Premier John Horgan is wrong about Trans Mountain.

“The current developments are a real test of Canada’s commitment to the rule of law and the ability of any resource company to rely on the legal approval process for projects,” said Dwight Newman, one of Canada’s top constitutional scholars and Munk senior fellow at the Macdonald-Laurier Institute.

To diminish the importance to Alberta and Canada of the Trans Mountain project, Horgan refers to it as a Texas project, adopting the pejorative jargon of eco-activists dependent on U.S. funding and organizational support to run their campaigns.

“The interest of the Texas boardrooms are not the interests of British Columbians,” Horgan said. In fact, Kinder Morgan Canada has been publicly traded since last year and is 77-per-cent owned by Canadians, with Manulife and TD the biggest shareholders. Its shippers are predominantly Canadian oilsands producers and Canada as a whole benefits from the pipeline’s opening of the Asian market.

Horgan’s actions have already triggered a trade war with Alberta, fomented irrational fears about oil spills, put the spotlight on B.C. for all the wrong reasons, and exposed his province to potentially hard retribution from both from Alberta and from Ottawa. If Horgan doesn’t see that, he’s not looking.

Climate Change Movement Retreats to California Courts

Posted on by Ron Clutz

The title comes from this article by Richard O. Faulk in RealClearPolitics
March 30, 2018.  Text below with my bolds.

After failing in every American political forum since the Paris climate accord was reached two years ago, the climate change movement has once again retreated to the courts. Not surprisingly, these advocates selected California’s federal courts as the forum of choice, counting on their comparatively liberal dispositions to breathe new life into their agenda. Pursuant to this initiative, several California counties and cities have sued numerous defendants, including major oil and gas companies, for emitting and exacerbating emissions of greenhouse gases.

In doing so, the plaintiffs based their claims on the tort of public nuisance, the broadest and vaguest remedy available. Public nuisance has been condemned by legal scholars as “notoriously contingent and unsummarizable” and a “wilderness of law.” William Prosser, one of America’s most famous law professors, wrote that nuisance was an “impenetrable jungle” and a “legal garbage can” full of “vagueness, uncertainty and confusion.”

Richard Epstein, another noted legal authority, concluded that nuisance “does not work on a moral or deductive principle.” U.S. Supreme Court Justice Harry Blackmun famously remarked that “one searches in vain for anything resembling a principle in the law of nuisance,” and even the California Supreme Court has rejected the remedy when it threatened to impose “standardless liability.”

Given this history, it is especially alarming that the climate change movement now seeks legal judgments in the absence of objective standards derived from the legislative or regulatory process. Even more incredibly, this persistent excursion has already been rejected by not only the Ninth Circuit Court of Appeals – the reviewing court that will decide any appeal from these judgments – but also by the Supreme Court of the United States.

Controversies such as climate change concern policy choices and value determinations that are constitutionally reserved to the executive branch or Congress and are especially ill-suited for judges. The Supreme Court has held that courts are fundamentally unequipped to formulate national polices or develop standards for matters, such as climate change, that are not legal in nature. As Justice Felix Frankfurter cautioned, “A court is likely to lose its way if it strays outside the modest bounds of its own special competency” and adjudicates only the legal phases of a broad social problem into an “opportunity for formulating judgments of social policy.” Although such “political questions” cannot be resolved constitutionally by judges, the climate movement seeks that precise result in California.

Even more curiously, the movement seeks monetary judgments for the California cities’ and counties’ own pockets – judgments supposedly intended to pay for adaptation and abatement of the alleged worldwide nuisance. Such money, if awarded as damages, would comprise gigantic windfalls allocated by unelected federal judges and spent at each plaintiff’s discretion. The judgments could never be implemented in a manner reasonably calculated to reverse global warming unless they were accompanied by a bureaucracy created, elected and funded to supervise the work internationally and ensure against waste and abuse. Since neither Congress, the California legislature, the county and city governments, nor any other elected bodies are willing to serve in these roles, the plundering of America’s energy enterprises is entirely unwarranted.

Under controlling Supreme Court authority, even when the political branches have not acted, common law courts are not necessarily free to “fill the void.” Irrespective of whether the executive or legislative branches have spoken, due respect for their constitutional responsibilities – combined with awareness of the judiciary’s own limitations – should motivate judicial restraint. Although the ancients concluded that “nature abhors a vacuum,” there are circumstances in the law, as here, where uncharted voids should be eschewed. In the absence of guiding principles, errors are as likely to fill the jurisprudential void as wisdom.

Richard Faulk is a lawyer at Davis Wright Tremaine in Washington, D.C.

Mixed Judicial Rulings on Pipeline Protests

Posted on by Ron Clutz

Since Feb. 26, two protesters have been on platforms in two trees on Peters Mountain with hopes of preventing the Mountain Valley Pipeline from moving forward.

Boston Judge Goes Easy on Protesters

Green activists are extremely excited to hear a Boston judge yesterday acquitted 13 protesters who attempted to block construction of a fracking gas pipeline in 2015. Posts at various activist sites repeat an article from the Independent which says:

More than a dozen protesters who clambered into holes dug for a high pressure gas pipeline said they had been found not responsible by a judge after hearing them argue their actions to try and stop climate change were a legal “necessity”.

Karenna Gore, the daughter of former Vice President Al Gore, was among more than 198 people who were arrested because of their 2015 actions protesting the pipeline in West Roxbury, Massachusetts, a suburb of Boston. Thirteen people were to go on trial this week, though prosecutors downgraded their original criminal charges to one of civil infraction.

On Tuesday, Judge Mary Ann Driscoll of West Roxbury District Court, found all 13 defendants not responsible, the equivalent of not guilty in a criminal case. She did so after each of the defendants addressed the judge and explained why they were driven to try and halt the pipeline’s construction.

Roanoke Judge Declares Protesters Acting Illegally

Earlier this month in Roanoke West Virginia, a judge issued a restraining order against protesters lodged in trees trying to prevent logging for constructing a gas pipeline. From the Roanoke Times:

Judge issues restraining order against pipeline protesters sitting in trees

A West Virginia judge has granted a temporary restraining order against pipeline protesters sitting in trees, leaving unanswered the question of how to remove them.

The protesters are “temporarily restrained from impeding … access” to a section of the Jefferson National Forest where construction of a natural gas pipeline is planned, the order from Monroe County Circuit Court Judge Robert Irons states.

In seeking the order, Mountain Valley Pipeline said in court papers that the “tree sit” protest could prevent it from cutting trees along the pipeline’s path in time to meet a March 31 deadline imposed by federal wildlife protections.

That is just what the protesters intend. If members of the group, assisted by a network of supporters, remain perched on wooden platforms in two trees about 60 feet above the ground, law enforcement officials could be asked to get them down.

“It’s a very good question,” Monroe County Sheriff Ken Hedrick said. “I’ve been puzzling over the answer myself. How in the world would you get them out of the trees?”

Hedrick said his office has received no instructions from the judge to serve or enforce the order — leaving matters up in the air for now.

The temporary restraining order, dated Thursday, is effective for 10 days. Additional details could come out Tuesday, when a hearing is scheduled on Mountain Valley’s request for a preliminary injunction, which could carry more weight and last longer.

Hedrick said it’s possible that the U.S. Forest Service — essentially the landowner that granted Mountain Valley a right of way through about 3.5 miles of woods — could take the lead in enforcing the order.

Forest Service officials have said only that they are monitoring the situation.

Meanwhile, the loosely organized group of protesters says it has no plans to back down from stands in two trees along the ridgeline of Peters Mountain, where the pipeline would pass under the Appalachian Trail.

Summary

Some points should be considered. Unlike the valve turners, the Boston protesters did not vandalize private property and equipment. Also, the pipeline was built anyway. These facts may have led to the leniency.

In the West Virginia case, the main concern seems to be conserving the forest and water purity, rather than claiming to stop global warming. Still that state may be less tolerant of obstruction by greens.

Update: May 21

Judge lifts restraining order against pipeline protesters

News outlets report Judge Robert Irons denied the injunction, reversing course less than two weeks after granting Mountain Valley Pipeline a 10-day restraining order against the protesters.

Mountain Valley Pipeline had sought the order, saying the protest could prevent cutting trees along the pipeline’s path in time to meet a March 31 federal wildlife protection deadline. A licensed surveyor testified the protesters were outside of the no-cut zone and inside the company’s right of way, but the protesters’ attorney, William DePaulo, pointed out mapping inconsistencies.

In his ruling, Irons highlighted concerns over the map data’s accuracy and questioned the urgency to reach a decision over two trees along the 300-mile (480-kilometer) pipeline.

Footnote:

Speaking of leaving matters up in the air, the pipeline protesters have been in the trees for a month, which is impressive.  But they are far from setting a record for moral pedestals.  That honor goes to Simeon the Stylite (390-459), an ascetic saint who achieved notability for living 37 years on a small platform on top of a pillar near Aleppo, Syria.

Cal Court to Hear Climate Tutorial

Posted on by Ron Clutz

Recent events in the legal claims against oil companies for climate damages feature both a setback for anti fossil fuel activists, and also scheduling for the court to hear both sides regarding the linkage between fossil fuels and climate effects like glaciers melting. First the ruling against the cities’ attempt to take the case out of federal court into state jurisdiction. (with my bolds)

People of State of California v. BP p.l.c. (Oakland) Notice 02/27/2018

The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court.

The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available.” The court dispensed with the cities’ three primary arguments for remanding the cases.

First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law.

Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.”

Third, the court said the well-pleaded complaint rule did not bar removal. The court also indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue.

The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims.

Federal Court Requested “Tutorial” on Climate Change.

Then we have an intriguing ruling by the court mandating a climate tutorial to educate the court on these matters. On the same day that it denied Oakland’s and San Francisco’s motions to remand their climate change lawsuits against fossil fuel producers, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.” The court indicated that counsel could either use experts to conduct the tutorial or conduct the tutorial themselves.

NOTICE RE TUTORIAL
The Court invites counsel to conduct a two-part tutorial on the subject of global
warming and climate change:

(1) The first part will trace the history of scientific study of
climate change, beginning with scientific inquiry into the
formation and melting of the ice ages, periods of historical cooling
and warming, smog, ozone, nuclear winter, volcanoes, and global
warming. Each side will have sixty minutes. A horizontal
timeline of major advances (and setbacks) would be welcomed.

(2) The second part will set forth the best science now
available on global warming, glacier melt, sea rise, and coastal
flooding. Each side will again have another sixty minutes.

The tutorial will be on MARCH 21, 2018, AT 8:00 A.M. AND RUN UNTIL ABOUT 1:00 P.M.
Experts may be used to present but counsel will also be welcome to conduct the tutorial.
IT IS SO ORDERED.
Dated: February 27, 2018. WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

Summary

Many of us have wanted to see a red and blue team confrontation, but did not see it coming in this way. As you see from the text of the ruling, it is two hours for each side, first on climate history and then on current global warming science. It has been a long time since climatists and skeptics faced off in a neutral venue. Hopefully people in the bay area will witness the proceedings.

Footnote:

Brian Potts writing in Forbes totally misinterprets the ruling, stating as a result the very thing the court prevented.

A California Court Might Have Just Opened The Floodgates For Climate Litigation

Background Resources:

On Coastal Climate Risk

Climate Hail Mary by Inept Cities

Is Global Warming A Public Nuisance?

Pipeline Tragedy/Comedy: Ideology and Energy Don’t Mix

Posted on by Ron Clutz

The inter provincial Canadian war over a bitumen pipeline is taking on Shakespearean drama as reported in the Globe and Mail  The symbolism of Kinder Morgan’s Trans Mountain pipeline  The article is by Arno Kopecky, an environmental journalist and author based in Vancouver.  Excerpts below with my bolds and images introducing the principle players.

Spare a thought for Rachel Notley. While you’re at it, spare another for John Horgan and Justin Trudeau. Three star-crossed allies, progressives all, steering ships through a Kinder Morgan tempest no pundit can describe without saying “collision course.” Shakespearean, ain’t it?

There’s tragedy, comedy and irony galore. Ms. Notley’s take on A Midsummer Night’s Dream with her midwinter ban on British Columbia wines – which was lifted on Thursday – lent itself so well to “Reign of Terroir” jokes that it can only end up raising the provincial wine industry’s profile. As for Alberta’s oil industry, this is more like Much Ado About Nothing. Whether the oil sands grow or shrink has much less to do with any one pipeline (even one that leads to almighty tidewater) than the global price of oil. What about all those Kinder Morgan jobs? Comedy. Anyone serious about creating oil-sector jobs for Canadians would be pushing to refine bitumen at home instead of exporting it raw. That’s why Unifor, the biggest union in the oil sands, intervened against the project in the NEB hearings.

But the notion that Kinder Morgan’s Trans Mountain pipeline expansion would add carbon to the atmosphere is comedy, too. If Kinder Morgan isn’t built, trains will keep moving the bitumen they’re already moving, at least until a higher force than pipeline capacity reduces Fort McMurray’s output. Everyone just makes less money that way.

When a country already has more than 840,000 kilometres of pipeline running through it, the fight over roughly 1,000 new kilometres is symbolic for both sides. But symbols matter. Now Trans Mountain has come to symbolize everything from the oil sands to climate change and reconciliation, and everyone’s job is at stake.

Premier Rachel Notley of oil rich, but landlocked and economically struggling Alberta.

None more than Ms. Notley’s, our likeliest candidate for tragedy. Alberta’s most progressive premier in more than 30 years, the woman who imposed a provincial carbon tax and raised royalties on oil sands operators and lifted Alberta’s minimum wage from the lowest to the highest in the country, Rachel Notley will not be replaced by someone nicer. Alberta’s profoundly oil-positive United Conservative Party, freshly merged and braying at her heels, threaten every last NDP policy with a Trumpian corrective. They’ll probably win the next election, too. Ms. Notley’s only hope is in proving to Albertans she can fight as dirty as any conservative would to protect the Symbol.

British Columbia Premier John Horgan, who recently formed a government propped up by a few Green party MPs.

Enter John Horgan, stage left. Poor guy. He’s running a province whose biggest, greenest city overwhelmingly voted against a once-in-a-generation opportunity to massively expand public transit, but has already proved itself willing to get arrested en masse in anti-Kinder Morgan protests. Mr. Horgan’s first major decision as Premier, the tortured approval of the Site C dam, earned him the condemnation of every environmentalist and First Nation leader in the province, if not the country. Now that he’s following through on his campaign promise to “use every tool in our tool box” against Kinder Morgan, fans and critics are trading placards. Never mind that Site C will keep far more carbon in the ground than any thwarted pipeline.

The thing is, pipeline battles on the coast aren’t about pipelines or even climate change. They’re about oil tankers. Want symbols? Wild salmon and orca populations are rapidly approaching extinction in southern B.C. Yes, oil tankers do already ply these waters. No, we don’t love hearing that the only way to pay for sorely lacking coastal protection is to heighten the risk of an oil spill by tripling the number of tankers.  But that’s the deal.

Canadian Prime Minister Justin Trudeau currently touring India.

Enter Justin Trudeau, our doomed and dashing Hamlet, haunted by the ghost of his father, asking not to be or not to be, but can the ends justify the means? The greater the ends, it seems, the crueler the means. For all his capacity to renege on inconvenient promises, Mr. Trudeau clearly does regard the fight against climate change as a Very Great End. He knows we’re losing the glaciers whose meltwater irrigates half of Canada’s agriculture; he’s aware of our metastasizing cycle of flood and forest fire; he’s already dealt with one wave of climate refugees, from Syria (yes – that war was largely triggered by a calamitous drought that beggared a million farmers); he knows this is just the beginning. (Note: The reporter and Trudeau believe things cited in this paragraph contrary to evidence, but ignorance and hubris are essential to any tragedy.)

Against all that, he weighs the spill risk of one new pipeline, twinned to a pre-existing condition, with a corresponding increase in tanker traffic through relatively safe waters in which oil tankers can so far boast a 100-per-cent safety rate. Without Kinder Morgan, Mr. Trudeau mutters, pacing the stage from left to right, you lose Alberta; without Alberta, you lose your national climate-change strategy, your coastal protections, your whole progressive agenda. You lose everything.

Enter, in our closing act, B.C.’s coastal First Nations. Of course, they’ve been here all along – Mr. Trudeau made them some promises, too. But so far, his definition of consultation looks a lot like the old one: a process to determine not if a project should proceed on Indigenous territory, but when. The courts may yet cancel Trans Mountain because of it, as they did Northern Gateway. That’s probably Mr. Trudeau’s best hope for a happy ending. He’s created his own Birnam Wood, an army of First Nations and their allies ready to lead the march to Dunsinane Hill, aka Burnaby Mountain and the terminus of the pipeline, for the biggest act of civil disobedience our generation’s seen.

It isn’t a question of if, but when.

This is another example of damage done by virtue signaling, further explained in Virtue Signaling as a Vicious Circle

Footnote:  Regarding the attempt to blame the Syrian conflict on drought, see Climates Don’t Start Wars, People Do

Virtue Signaling as a Vicious Circle

Posted on by Ron Clutz

A recent article reveals how perverse is the trendy pattern of virtue signaling. Ron Ross observes examples of this growing substitute for ethical behavior, adding perspective and raising concerns. His essay at the American Spectator is The Power and Prevalence of Virtue Signaling  Excerpts below with my headings, bolds and images.

Puzzling Events Explained by Virtue signaling

One key to understanding much of the bewildering behavior we see around us is to recognize the power and popularity of “virtue signaling.” Keeping virtue signaling in mind will help you understand a lot of behavior that otherwise makes no sense.

What, for example, is the point of removing Confederate statues or attempting to disown the country’s Founding Fathers because some were slave owners? It makes sense if your objective is to be sanctimonious. You make yourself feel better by looking down your nose at Thomas Jefferson.

Virtue signaling is the modern version of what St. Augustine in the 5th century referred to as “outward signs of inward grace.” A major difference, however, is the kind of grace he referred to actually meant something.

First the Guilt Trip, then Superiority

A precondition to needing to virtue signal is guilt. Virtue signaling is one of the left’s package deals that typically involve two steps. Firstly, make people who have done nothing wrong feel guilty. Then, offer them ways to assuage that guilt. It’s little more than a con game but it has worked amazingly well for liberals.

It always helps to keep in mind that everything is relative. In order to feel superior, you need something to feel superior to. Virtuous relative to what? In order to feel holier than thou you need a thou.

Does virtue signaling accomplish anything outside of the individual? Anything tangible, significant? Any activity as widespread and long-lasting as virtue signaling has to have payoffs. The payoffs for virtue signaling are inner, not outer, directed.

An irony is that the need to virtue signal is an insecurity about your own virtue. An observation a psychologist friend likes to make is, “The bigger the front, the bigger the back.” Or as Ralph Waldo Emerson observed, “The louder he spoke of his honor, the faster we counted our spoons.” Virtue signaling is motivated more by insecurities than virtue.

The “signaling” part of virtue signaling means you want others to become aware of your virtue. Why is that important to you? Where does your need to signal come from? Are you so overwhelmingly virtuous that you can’t resist letting others know about it?

Symbols Instead of Substance

Virtue signaling is, of course, closely related to political correctness. Being sensitive to PC and being quick to take offense demonstrates your virtue for all to see.

Recycling is one of the left’s favorite sacraments. It helps overcome the guilt of consuming.

There is an opportunity cost to virtue signaling. Spending time on useless activities, e.g. recycling, marching, allows avoidance of useful, meaningful activities, e.g. being thoughtful and considerate of those around you, e.g. family, friends, and people you work with. Those behaviors can actually make a difference.

Maybe you’ve wondered why actors and other celebrities feel the need to publicly express their political opinions. What is their motivation? Maybe they feel guilty about how amazingly wealthy they are (they shouldn’t).

Donald Trump is the context for much of the virtue signaling we observe. It’s another two-step process. The first step is to decide that Donald Trump is a reprehensible human being. He is crude, unsophisticated, and his personality makes you cringe. The second step is making it crystal clear that you and he are polar opposites. You have absolutely nothing in common with him. You don’t need to provide details about what makes you virtuous, just the fact that you despise him is sufficient to prove you’re virtuous. He is crude, you are refined. Trump provides a backdrop for your identity. It’s ironic that hate is seen as a path to virtue.

Grandstanding Instead of Civility

Virtue signaling is a substitute for thinking, it is thinking avoidance. It is the latest variation of group think. When you latch on to group opinions you have no need to think for yourself.

Driving a Prius automobile is a popular form of virtue signaling. Driving a hybrid lets others see that you care about the planet and that you’re doing your part to prevent it from being destroyed by CO2. Driving a Prius allows to you drive rudely and carelessly. Cutting someone off or running a stop sign or two are trivial matters compared to saving the planet. Everything’s relative. It’s probably no accident that Priuses have an unusual profile. That helps assure that your virtue signal will noticed.

A favorite demand of leftists on college campuses and endowment fund boards of directors is “divestment.” What is divestment? In the investment portfolios of endowment funds and retirement portfolios are stocks of companies involved in shunned activities such as producing and selling fossil fuels. In such situations activists demand that the colleges or foundations divest, i.e. sell, any stock of such despicable companies.

Divestment is possibly the most useless behavior anyone could ever imagine. How anyone thinks it will have any impact on anything real is a mystery. Because of the way capital markets work, divesting on anything but a massive scale will have no long-term impact on a company’s share price. If they manage to drive a stock’s price down, bargain hunters will drive it back up to its underlying value, relative to other stocks. Other than stoking sanctimony divestment accomplishes absolutely nothing.

Sincerity Posing as Goodness

Showing your disapproval of the names or mascots of sports teams demonstrates your sensitivity for the supposed feelings of various minority groups. How many of those demanding that the Washington Redskins change their name are Indians? My guess is that it’s a very small fraction.

Wearing ribbons is a popular form of virtue signaling. The ostensible purpose is to “raise awareness” for such things as breast cancer (pink ribbons). Is there anyone who isn’t already” aware” of breast cancer? And once your awareness has been raised, what are you supposed to do with it? As is the case with every variation of virtue signaling, the mission statement is nowhere to be found.

Feeling Good about Caring the Most

Virtue signalers are delicate creatures who are easily offended. They wouldn’t be caught dead laughing at stereotypical humor. They are overly serious about almost everything. It only hurts when they laugh.

There is a large element of virtue signaling in environmentalism. Devout environmentalists like to think they’re the only ones who care about the environment. Relative to how much they care about the environment you don’t care much at all.

Marching and demonstrating are two popular virtue signaling activities. The next big opportunity will be June 9. It is the “March for Oceans,” or what they’re labeling “M4O.” According the organizers’ website, “This summer we will see a new blue wave of resistance — and celebration — for the other 71 percent of our environment that is the Ocean. The ocean is rising and so are we!”

Uselessness and remoteness are two of the ingredients for virtue signaling choices. Driving a hybrid automobile will make not an iota’s difference to “climate change” (whatever that is). In any case, the “climate disruption catastrophe,” as it’s sometimes called, is not predicted to occur for another fifty years. It was more than two hundred years ago when some of our founding fathers owned slaves. The past is unchangeable and irretrievable. Problems that you can’t do a damned thing about are virtue signaling favorites.

A recent Dennis Prager column, “Three Reasons the Left Wants Evermore Immigrants,” had as reason number three, “the power of feeling good about oneself. It would be difficult to overstate the significance of feeling good about oneself as a primary factor in why people adopt left-wing policies.… In their eyes, they are moral heroes protecting the stranger, the oppressed, the marginalized, the destitute.”

Until this week William McKinley thought he was home free.

Finally, this just in: The Arcata, California city council voted Wednesday night to remove the statue of President William McKinley from the town square. The statue has been in place for over a hundred years. As per usual, McKinley’s sins have not been clearly elucidated. He was assassinated in 1901. Like Matt Lauer, the statue will vanish into the ether. One of the groups demanding the statue’s removal is the Humboldt State University student group, Movimiento Estudiantil Chicanco de Aztlan, whatever that means. I’m embarrassed to admit I’m a resident of Arcata. Our neighboring town to the north is McKinleyville. The town’s name is probably not long for this world.

These are just a sampling of the ways virtue signaling is dictating behavior far and wide. Being aware of its many manifestations will reduce your confusion and increase your amusement. It’s a shame it’s doing so much damage.

Footnote:

The Darrow quote crystallized what was making me uncomfortable about the behavior of the Parkland survivors on television.  I understand they were scared out of their wits, lost friends and are angry.  But the aggressive and threatening language toward anyone not on their bandwagon smacks of self-righteousness, and worse a justification for bullying.  It makes me wonder how much of that helped send the shooter around the bend.

More Civil Climate Discourse

Posted on by Ron Clutz

As discussed in Coercive PC Discourse, there is a lot of insulting and shouting when it comes to climate change.  As the summary of the post said:

But there is a way to reduce needless division over the countless disagreements that are inevitable in a pluralistic democracy: get better at accurately characterizing the views of folks with differing opinions, rather than egging them on to offer more extreme statements in interviews; or even worse, distorting their words so that existing divisions seem more intractable or impossible to tolerate than they are. That sort of exaggeration or hyperbolic misrepresentation is epidemic—and addressing it for everyone’s sake is long overdue.

In the interest of demonstrating how climate realists can deal in a civil manner with disagreeable others, I provide some further helpful examples from Alex Epstein, author of The Moral Case for Fossil Fuels. Excerpts from his recent emails with my bolds.

1. Promoting Dialectic rather than Debate

Late last week I got this email from reader Peter Conley. I hope you find it as motivating I do. Peter is proof that with enough study and practice it’s possible to get amazing results in your energy conversations. At the end I’ll tell you a new technique I learned from Peter’s email.

***READER COMMENT***

Hello Alex,

I use [your framework] to discuss the issue of energy every opportunity I get and it is highly effective at promoting dialectic rather than debate. I had an experience with a schoolteacher on a Southwest flight recently that illustrates its effectiveness:

Teacher: “Do you believe in climate change?”

Me: “That is a very interesting and complex topic. It’s obviously very important to you. What are your thoughts on the subject?”

Teacher: “We need to stop it!”

Me: “And why is that?”

Teacher: “Because the ice caps are melting!!”

Me: “And why do you care about that?”

Teacher: “Because sea levels will rise!”

Me: “And why is that alarming?”

Teacher: “Because coastal cities and entire countries will be underwater!!”

Me: “So, you’re concerned about the negative impacts it will have on people?”

Teacher: “Of course, I don’t want to leave such a dangerous world to my grandkids.”

Me: “Of course not, neither do I. Would you agree then that when we think about this issue, we should use human flourishing as our standard of value?”

Teacher: “Yes, definitely!”

Me: “Do you know, then, if human deaths because of climate-related factors such as extreme hot, extreme cold, and drought are increasing annually or decreasing?“

Teacher: “Well, I’d imagine they are increasing.”

Me: “What if I told you that the number of such deaths worldwide have decreased from over 3 million one year in the early 30s, to under 30,000 in this decade?”

Teacher: “Wow! Why is that?”

Me: “Because of technology. Because we are so much better at protecting ourselves from the naturally dangerous environment than our ancestors were. So, what would you say the most basic human need is?“

Teacher: “Food, shelter, water, security.”

Me: “Those are all actually products of fulfilling one basic need, one basic necessity; the most basic human need is energy.”

He agreed, and further agreed that we must look at all costs and benefits and had a two-hour discussion about those. He was able to understand my thinking and said “I didn’t know that” far more times than he said “I don’t know about that.”

I like your point that the energy industry is the industry that powers all other industries. I have found it highly effective to explain that point after first asking “What is the most basic human need?” Most of the time I get answers like the teacher gave, or references to Maslow’s Hierarchy of Needs. Helping the person conclude that energy is the most basic human need helps to frame the conversation in terms of human flourishing . . .
I appreciate all the work that you do, and you have inspired me to do what I can to correct the conversations people are having.

Sincerely,

Peter

>>>MY COMMENTS

As I said at the outset, you’re doing an amazing job.

Here are two tactics I want to experiment with myself after reading your note.

Getting agreement on a pro-human standard by asking “Why” to their value statements. I usually get another person to agree on a common, pro-human standard by asking something like “Would you agree that the best decision is the one that most advances human life?” But your way is intriguing. When they say they care about something, you keep asking “Why” until you get down to the level of an ultimate standard—and then you offer “human flourishing” as your view. One reason this is effective is because it quickly introduces the idea that there need to be reasons (standards) for caring about things. Another reason it’s effective is that you’re challenging the idea that environmental change—ice caps melting—is inherently bad. I imagine that you need to strike a careful tone while asking these questions. If you come across as completely indifferent to the thing they claim to care about it could backfire. But if you ask the question earnestly, indicating that you’re looking to clarify not contradict, I can see how it would work well.

How you explain that energy is a fundamental need. The question “What do you think the most basic human need is?” Is an engaging question to ask. By getting the other person to state what they think are the most important needs you’re connecting them very concretely to the requirements of human flourishing. And then you show how energy is fundamental to those needs, connecting energy to human flourishing. This ensures that access to energy doesn’t become anything resembling optional or derivative—it stands as fundamental.

2. What to do when someone calls you the devil

***READER COMMENT***

I’ve been listening to some of your interviews on YouTube and I sincerely appreciate your effort to make the case for fossil fuels. I am about to graduate with a degree in chemical engineering and I have a job lined up to work for a major oil company at their largest US refinery.

On my college campus I encounter people that seem to be so clueless as to the benefits of fossil fuels that I don’t even know where to begin to try to convince them. I talked to one young freshman girl and when I told her that I want to go work in oil and gas, she responded with “you mean Satan?” I was so stunned at her hostility that I didn’t know how to respond. I just said “yeah sure,” so that I didn’t have to engage in a combative conversation. What do you think I should have done in this situation?

Best regards,

Zachery Baker

>>>MY COMMENTS

Great question, Zachary.

Imagine that you had told the freshman not “I want to go work in oil and gas,” but “I want to go work for a hospital.” And she had responded “You mean Satan?”

How would you react?

Here’s my guess:

  1. You would find her response hypocritical; you would be sure she and certainly those she cares about have taken advantage of the life-and-death benefits of hospitals.
  2. You would find her response offensive; she is assuming you would work for an evil enterprise.

I think the exact same reaction is warranted in the case of fossil fuels. Fossil fuels, like hospitals, have risks (hospitals have more) but are indispensable to human flourishing. If someone condemns us for pursuing a career providing energy that billions of people need and request, they are being hypocritical and offensive.

In my experience you can profitably point out either of these if you do so politely and calmly.

Express curiosity about hypocrisy

In the case of hypocrisy, I like to take a tone of curiosity and/or confusion, not condemnation.

F: “You mean Satan?”

You: “I’m curious why you think they’re Satan. Just looking at you right now you appear to be a major user of their products…”

She’ll either acknowledge that she’s a user or not—either way you can transition into why we all use products of the oil industry.

Be offended (but calm)

You: I’m curious, would you ever work for an industry you believed was evil?

F: No, of course not.

You (gravely): Neither would I. (Don’t break eye contact.) And I find it offensive that you think I would without asking me why I chose to work in this industry.

This will give the other person the opportunity to apologize and express sincere interest in your thought process—or to be rude and prove unworthy of your time.

Let me know how it goes!

Bravo Alex for engaging people constructively in the battle for hearts and minds as we perhaps enter a cooling period where our energy needs will be even more pronounced.

Previous Post with different examples: Civil Climate Discourse

Footnote:  For more on how green zealots are poisoning the social environment, read the poignant story of Tisha Schuller, an environmentally responsible energy consultant writing in the Breakthrough Institute Journal:  Reclaiming Environmentalism  How I Changed My Mind Without Changing My Values

Schuller on where she is today:

For several years, I stopped calling myself an environmentalist. After five years of threats, extremism, and misinformation from a community I’d once considered myself a part of, I simply couldn’t use the term anymore.

It’s easier, now, to unwind my complex relationship with environmentalism and environmentalists. I’m no longer a target of constant criticism and threats, for one, and I have the mental leisure to dissect my own experiences and prejudices. With the benefit of hindsight, I’ve become passionate about reclaiming the term. I am an environmentalist.

But I can no longer embrace many of the totems that have come to define environmentalism for many people.

 

 

 

 

 

 

 

 

Global Warming Contingency Fees

Posted on by Ron Clutz

John O’Brien of Forbes legal news line has the story: Oakland Would Pay 23.5% Of Recovery From Its Global Warming Lawsuit To Private Lawyers Excerpts below with my bold.

The City of Oakland – one of eight California governments going big-game hunting by suing the energy industry over climate change – will pay private lawyers almost one-quarter of any recovery and says it does not have to disclose any communication with the firm it hired.

In response to a Legal Newsline request under the California Public Records Act, the city says it is prohibited from releasing “communications between an attorney and his or her clients.”

What Oakland did disclose was a contingency fee agreement that provides for 23.5% of the net recovery to be paid to the firm Hagens Berman Sobol Shapiro. Oakland City Attorney Barbara Parker and Steve Berman signed the document on Sept. 8.

Oakland, CA, is paying private lawyers nearly one-quarter of any funds it receives from its climate change lawsuit against the energy industry. Photographer: David Paul Morris/Bloomberg

“The defendants include some of the world’s largest corporations and are well-funded adversaries with histories of a willingness to engage in costly and protracted litigation,” the agreement says.

In Texas, Exxon is seeking to depose many public officials and a Hagens Berman attorney over why these lawsuits allege disasters that will cause damage to the cities and counties, but why those officials didn’t disclose that to potential investors in bond offerings.

Chevron has devised its own strategy, filing a third-party complaint against Norway’s state-owned oil company, Statoil. If it should have to pay for the effects of climate change, so should everyone else, the company appears to be saying.

A finding that Chevron and other fossil fuel companies are liable would implicate others, the company says, like promoters (the makers of automobiles, aircraft, farm equipment and heating equipment); emitters (individuals around the world who consume and burn fossil fuels); and the plaintiffs themselves.

“This third-party complaint is one of many that Chevron expects to file should this case proceed past motions to dismiss,” Chevron said.

Oakland’s lawsuit was filed in 2017, as were cases filed by the counties of Marin, Santa Cruz and San Mateo and the cities of San Francisco, Santa Cruz and Imperial Beach.

This year, Richmond, CA, and New York City have filed lawsuits, and Boulder, CO, is planning one.

Why these lawsuits should be dismissed:Is Global Warming A Public Nuisance?

Climate Lawyers to the Rescue!