Briefing for Glasgow COP 2021

 

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

Media Climate Hype is a Cover Up

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

Fighting Global Warming is Absurd, Costly and Pointless.

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

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

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

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

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

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

How the Media Throws Up Flak to Defend False Suppositions

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

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

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

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

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

Alarming Weather and Wildfires

But: Weather is not more extreme.


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

post-glacial_sea_level

Litany of Changes

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

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

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

We’re seeing glaciers melting, sea level rising.

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

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

We’re seeing more intense storms.

But: Arctic Ice has not declined since 2007.

But: All of these are within the range of past variability.In fact our climate is remarkably stable, compared to the range of daily temperatures during a year where I live.

And many aspects follow quasi-60 year cycles.

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

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

 

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

But CO2 relation to Temperature is Inconsistent.

But: The planet is greener because of rising CO2.

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

But: Renewables are not ready for prime time.

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

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

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

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

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

An Example:

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

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

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

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

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

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

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

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

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

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

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

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

Summary:  From this we learn three things:

Climate warms and cools without any help from humans.

Warming is good and cooling is bad.

The hypothetical warming from CO2 would be a good thing.

 

Climatist Insurrection Enters New Phase

Previously the insurrection by climate anti-fossil fuel acitvists took the form of sabotaging oil and gas infrastructure, led notably by the “valve turners”, who were arrested and mostly let off the hook in a series of high profile trials.  This phase broke down after numerous states enacted serious penalties for attacks on energy projects and infrastructure. Also, with the Biden administration climatists hoped for swift federal action to shut down oil and gas production and supply. See Securing Pipelines Against Disrupters

Disappointed with lack of progress on their “leave it in the ground” agenda, activists are now attempting to occupy federal buildings to intimidate public officials into action.  This could be a precursor of more insurrection events far more serious than anything happening on Jan.6, 2021.

Michael Austin reports at The Western Journal  ‘Insurrection’? Climate Change Protesters Attempt to Storm Interior Department Building.  H/T John Ray.  Excerpts in italics with my bolds.

The Jan. 6 Capitol incursion was not an insurrection, as many left-wing politicians and pundits have claimed.  Sure, some of those present during the incursion were rioters who broke the law. They should be punished accordingly.

 On Thursday, Oct. 14,  a large group of climate change protesters tried to enter the Department of the Interior, according to Ellie Silverman, a reporter for The Washington Post.

“Climate protesters are now rallying outside the Department of the Interior. They’re trying to get inside but police are blocking the entrance. I can see a few Indigenous women through the doorway who are sitting on the floor inside the building and linking arms,” Silverman tweeted.

She further noted that “protesters are remaining on the steps and won’t move out of the doorway where several police are blocking passage into the building.”

If these activists happened to be conservatives protesting against vaccine mandates or Bidenflation, the media would be covering it ad nauseam.

Panicky headlines declaring the return of the Jan. 6 “insurrectionists” would spread like wildfire across social media.

But instead, since the protesters happen to be supporting a cause backed by the establishment elite, the media has remained largely silent.

P.S. I don’t think of these protesters or those at the capital 6/1/21 as “insurrectionists.” But if that is the term used to imprison 6/1/21 participants and remove their civil rights, then it should also be applied here. We do not know whether these disturbances will evolve into riots like those in Portland where the Federal Courthouse was vandalized by insurrectionists, never held accountable.

Scottish High Court Dismisses Greenpeace “End-Use Emissions” Argument

The Guardian reports on the ruling in its article Greenpeace loses North Sea Vorlich field legal challenge.  H/T Tallbloke’s Talkshop  Excerpts in my bolds.

Permission to drill the Vorlich site off Aberdeen was given to BP in 2018.

Greenpeace argued in Scotland’s highest civil court there had been “a myriad of failures in the public consultation” and the permit did not consider the climate impacts of burning fossil fuel.

The Court of Session ruling means operations will continue at the field. Greenpeace plans to appeal.

Production from the development started in November after BP was granted approval by the Oil and Gas Authority (OGA) in 2018.

The UK government welcomed the outcome.

The text of the ruling is Opinion of the Court Greenpeace Ltd. vs. BP Ltd.  

The procedural complaints were dismissed as being without merit.  The excerpts below (in italics with my bolds) address the activist theory of disallowing oil production and transportation based upon CO2 emissions of the end users consuming the energy products.

[38] The indirect emissions challenge was res judicata. Permission to proceed had been refused by the High Court. In any event, the challenge was without merit. The Directive was concerned with the effect of the individual project, not the use of material extracted in the course of a project. The focus was on the particular “project”. The definitions provided no support for the contention that the end use of raw materials, after further processes such as refinement to create a different product, was a relevant consideration (R (Finch) v Surrey County Council, at paras [101]-[102] and [109-112]).

[39] Direct emissions from the end use of oil and gas in the UK were considered and taken into account in the UK’s Annual Statement of Emissions. These were matters for political judgment (R (Plan B Earth) v Secretary of State for Transport [2021] PTSR 1901 at paras [2] and [281]), which were not challengeable in an appeal under regulation 16. The determination of a carbon budget for the UK was a complex, high-level strategic decision.  Indigenous oil and gas development was an important part of the transition to a low carbon economy. This was all part of the existing framework, which sought to manage the UK’s progressive decarbonisation up to the year 2050 (cf R (Packham) v Secretary of State for Transport [2021] Env LR 10 at paras 83 and 87).

[40] The production of oil from the Vorlich field did not increase the use of oil. The appellants’ position, that as a matter of principle there should be no new oil, conflated and confused different questions. The scope of an EIA was a matter of judgment, so long as the information in it was accurate.

The environmental effects of the consumption of oil and gas

Merits

[63] The relevant considerations which require to be taken into account in an environmental impact assessment, notably when the applicant is preparing his Environmental Statement, are set out in regulation 3A. So far as is relevant to the current appeal, the applicant is required to assess the direct and indirect significant effects of the project on, amongst other elements, the climate and the operational effects of the relevant project. In this area, regulation 3A(2) mirrors the terms of the Directive (Art 3.1). Again, there is no issue concerning any lack of adequate transposition.

[64] The question is whether the consumption of oil and gas by the end user, once the oil and gas have been extracted from the wells, transported, refined and sold to consumers, and then used by them are “direct or indirect significant effects of the relevant project”. The answer is that it is not. The exercise which the applicant had to carry out, and the Secretary of State had to assess, was a determination of the significant effects of drilling the two wells and removing the oil and gas. That involved considering the effects of depositing and operating an exploration rig or rigs on site. The ultimate use of a finished product is not a direct or indirect significant effect of the project. It is that effect alone which, in terms of the Regulations, must be assessed.

[65] The court agrees with the reasoning in R (Finch) v Surrey County Council [2021] PTSR 1160 in which Holgate J reached the same conclusion in relation to what is a direct or indirect effect of a “development”; in that case the drilling of new oil and gas wells on land.  As Holgate J stated (at para 101):

“The extraction of a mineral from a site may have environmental consequences remote from that development but which are nevertheless inevitable. …[T]he true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought. An inevitable consequence may occur after a raw material extracted on the relevant site has passed through one or more developments elsewhere which are not the subject of the application… and which do not form part of the same ‘project’.”

However broad and purposive an interpretation of the Regulations or the Directive might be attempted, the clearly expressed wording of the legislation cannot be disregarded (ibid at paras 103-104). It is the effect of the project, and its operation, that is to be considered and not that of the consumption of any retailed product ultimately emerging as a result of a refinement of the raw material.

[68] It would not be practicable, in an assessment of the environmental effects of a project for the extraction of fossil fuels, for the decision maker to conduct a wide ranging examination into the effects, local or global, of the use of that fuel by the final consumer.  Although the appellants’ aspiration is for such extraction to cease, it does not appear to be contended that the UK economy is not still reliant in a number of different ways on the consumption of oil and gas. At present, a shortage of oil and gas supplies is a matter of public concern. The argument is, in any event, an academic one. It is not maintained that the exploitation of the Vorlich field would increase, or even maintain, the current level of consumption. Unless it did so, it is difficult to argue that it would have any material effect on climate change; even if it is possible to arrive at a figure for its contribution by arithmetical calculation relative to the production of oil and gas overall. The Secretary of State’s submission that these are matters for decision at a relatively high level of Government, rather than either by the court or in relation to one oilfield project, is correct. The issue is essentially a political and not a legal one.

My Comment

Recent years have seen an huge increase in legal attacks funded by woke wealthy people with deep pockets against the supply of fossil fuels.  At the same time governments have loaded up regulatory regimes that impede or prevent additional development of FF energy resources. Instead of appreciating how essential are these fuels to modern societies, policy makers, and in many cases judges, are motivated by the slogan “keep it in the ground.”  As in the opinion above, shortages in fossil fuels supply are a public concern, and especially worrisome as we approach winter. Despite this, the activist strategy is to cut off supply of affordable, reliable energy even when alternatives like renewables will not replace them, and let the people do without.

At least in this ruling the judiciary got it right.

 

 

Climate Tyranny By Way of Criminal Law

Dr. Lucas Bergkamp writes at Real Clear Energy The Legal Doctrine of “Carbon Crimes”—Torturing Law and Reason to Rid the Planet of Climate Change Deniers.  Excerpts in italics with my bolds and added images.

Abstract

The climate movement has discovered criminal law as a tool for conducting climate politics. To complement civil lawsuits against states and corporations, the movement’s activists intend to invoke torture and a newly proposed crime of “ecocide” to target corporate executives, politicians, and others who stand in the way of their preferred policies. In pushing their agenda, these activists receive assistance from the judiciary—specifically, the European Court of Human Rights.

The use of criminal law to pursue climate politics is a further step in the radicalization of the climate movement and poses a threat to economic and political freedoms, the rule of law, and democracy.

If the movement is able to realize its plans, all those who do not support ambitious climate policies would have to fear prosecution and imprisonment. Conversely, threatening criminal sanctions against politicians and corporate executives will create powerful incentives to adopt ambitious climate policies and the dominant pro-climate narrative.

Lucas Bergkamp explains how criminal law, in the climate movement’s vision, should supplement civil and administrative law to eliminate any and all opposition to its plans for the realization of a climate utopia.

European government of judges

Over several decades, the European Court of Human Rights (ECHR) has evolved into a European government in itself. Based on doctrines designed to enable it to expand its powers at its discretion, the Court has enacted a series of mandates for new laws and policies for Europe. There is little democratic control over the Court’s role in advancing progressive politics. Once the Court has spoken, national parliaments are unable to undo its pontification because a human right trumps national law; national judiciaries are compelled to execute the Court’s judgments, even if their own national law provides otherwise.

While imposing its high moral demands on executive governments, the Court believes itself to be quite exempt from any moral or legal constraints. In a previous contribution, I discussed how climate change litigation before the Court has undermined the rule of law, the separation of powers, and democracy. In this article, I focus on the Court’s role in criminalizing the climate debate. Its reckless disregard of judicial impartiality, the right to a fair trial, and judicial restraint is another manifestation of the Court’s support for the progressive movement.

The rationale supporting criminalization

The argument for criminalizing “climate denial” typically boils down to the following argument articulated by Jeremy Williams:

Given what we know and have known for decades about climate change, to deny the science, deceive the public, and willfully obstruct any serious response to the climate catastrophe is to allow entire countries and cultures to disappear. It is to rob … the poorest and most vulnerable on the planet of their land, their homes, their livelihoods, even their lives—and their children’s lives, and their children’s children’s lives. For profit. And for power…. These are crimes. They are crimes against the earth, and they are crimes against humanity.

This emotional outcry is not only an impenetrable amalgamation of factual and moral reasoning but also assumes what must be proved. To prevent disaster, rationality needs to be brought back into the analysis. Unfortunately, as the ECHR demonstrates, we cannot rely on the judiciary to do so.

“Climate emergency”

The European Court of Human Rights, to which its president refers as the “European Climate Change Court,” has used the opportunity presented by the climate litigation that it invited to take the lead in criminalizing the climate debate. It has done so in a number of ways. First, the Court’s president and one of its vice presidents have declared publicly that “we are facing a dire emergency that requires concerted action by all of humanity” and that “we will face the collapse of everything that gives us our security.” Thus, the Court’s leaders have openly and unreservedly endorsed the climate movement’s alarmist rhetoric. They have done so not based on science but on alarmist declarations by Sir David Attenborough, a well-known biologist and climate activist.

Second, to prevent any argument on the facts, the judges added: “No one can legitimately call into question that we are facing a dire emergency that requires concerted action by all of humanity.” They also committed the Court to the cause: “For its part, the European Court of Human Rights will play its role within the boundaries of its competences as a court of law, forever mindful that Convention guarantees must be effective and real, not illusory.”

No right to a fair trial for deniers

By issuing these warnings, the Court effectively closed down any debate on climate change and climate science before any trial has even begun. In doing so, it deprived defendant states of an important argument to defend themselves against allegations that their climate policies are inadequate to fight the alleged climate crisis. Before they could present the relevant scientific evidence showing that there is no such thing as climate emergency or climate crisis, the Court’s leading judges told the defendant states that they should not dare to deny.

By labeling any argument that there is no climate crisis “illegitimate,” these leading European judges, who should serve as examples of judicial impartiality, have endorsed the climate movement’s climate-denier rhetoric. This rhetoric is an inappropriate, unethical play on Holocaust denial. Simultaneously, and directly relevant to this contribution’s subject, the Court’s “illegitimacy” label also raises the specter of criminal prosecution.

There is no climate crisis

It is hard to think of any judicial conduct that shows greater partisanship and disregard for the principle of judicial impartiality than the conduct of these European human rights judges. The right to a fair trial, guaranteed by article 6 of the European Convention on Human Rights, has effectively been set aside for climate deniers. The question should be asked whether, given the opinions expressed by its leaders, the ECHR can legitimately rule in any climate case.

The Court’s denial of justice is all the more shocking in light of the science, which does not support the proposition that there is a climate crisis. The European Commission has stated: “The term ‘climate emergency’ expresses the political will to fulfil the obligations under the Paris Agreement.” In almost 4,000 pages, the recent Intergovernmental Panel on Climate Change (IPCC) AR6 report does not once employ the terms “climate crisis” or “climate emergency” because these terms do not belong to the scientific terminology (they occur only in a descriptive section on communication). Rather, they are political slogans, as the Commission suggested. To the point, the undefined “climate emergency” is an invention by activists.

Judicial threats

Corporate executives of companies deemed to be responsible for greenhouse gas emissions, politicians that do not support ambitious climate policies, and everyone else who advocates against the climate movement’s agenda would be exposed to criminal prosecution and imprisonment of up to 30 years. This is not a far-fetched interpretation of the relevant law but, as explained below, a fairly straightforward application. Obviously, the ECHR was well aware of what it was doing by slipping in “torture,” but it nevertheless felt comfortable proceeding in this manner.

Needless to say, the threat of life imprisonment is a very powerful disincentive. As an academic author for UNESCO put it:

Criminal sanctions are the most potent tools we have to mark out conduct that lies beyond all limits of toleration. Criminal conduct violates basic rights and destroys human security. We reserve the hard treatment of punishment for conduct that damages the things we hold most fundamentally valuable. Climate change is causing precisely such damage.

This seems to be exactly what the judges on the ECHR believe. Corporate executives will have to think twice about corporate climate policies and will be inclined to cave in to activists’ demands. Likewise, politicians skeptical of the current climate policies may feel compelled to give up their resistance. All other dissenters may also be inclined to choose personal security over honesty.

Economic freedom, political freedom, and freedom of speech would be obliterated.

Is this what the Court’s president means when he says that the European Convention guarantees must be “effective and real, not illusory”? The Court’s inexplicable decision to add torture to the charges in the first climate case only adds to the concern that human rights protect only those who endorse progressive causes, not those who have other political preferences.Ecocide

By invoking the crime of torture in the climate debate, the ECHR may also have intended to assist the efforts to get ecocide recognized as a crime. “Ecocide” refers to the “devastation and destruction of the environment,” but no official legal definition yet exists. For decades, greens have been trying to get ecocide recognized as an international crime—but so far, to no avail. In the last two years, however, due to the rise of the climate crisis narrative, they have made significant progress. There now is much activity aimed at persuading international organizations to legislate on ecocide.

In June 2021, an expert panel convened by the Stop Ecocide Foundation published a definition of “ecocide” intended to serve as the basis for an amendment to the Rome Statute of the ICC. Once the Rome Statute is amended to include ecocide, individuals suspected of having committed ecocide can be tried before the ICC.

Moreover, the Rome Statute applies equally to all persons, without any distinction based on official capacity; specifically, elected representatives and government officials are not exempt from criminal responsibility.

Thus, politicians, corporate executives, thought leaders, and anyone else can be subject to criminal prosecution if they express an opinion or pursue a policy deemed to be “anti-climate” that therefore may result in ecocide. In the fight against climate denial, this tool would be of incalculable value.

European Union “leadership”

The European Parliament has referred to ecocide in two recent reports and expressed the wish to recognize ecocide under EU law and diplomacy. To prepare the adoption of an EU directive on ecocide, the European Law Institute launched a project on ecocide. Taking advantage of the momentum, even before this project is finished, the ecocide movement is now pushing to get ecocide included in the EU Environmental Crimes Directive, which is currently being revised.

EU member states control a significant portion of the votes necessary for an amendment of the Rome Statute and can provide incentives to secure the additional votes necessary to get the crime of ecocide adopted. The consequences of such an amendment could be enormous if the ICC follows the example of the ECHR and jumps onto the climate activists’ bandwagon.

Climate change is ecocide

Make no mistake: while the definition of ecocide is broad and vague, the primary target of the ecocide movement is climate change. Civil liability law and human rights law give climate activists the tools to force governments and companies to comply with their demands, but this kind of litigation is expensive and takes time. The new crime of ecocide would give them a powerful instrument to shortcut the process by threatening criminal sanctions against corporate directors and officers, as well as reluctant politicians and opinion leaders, and to force them to change their ways.

Climate activists also believe that the term “ecocide” will have an emotive and stigmatizing effect that “causing climate change” does not have. As one author puts it:

The term “ecocide” sounds dramatic. It is more emotive than “contributing to pollution” or “increasing greenhouse gas emissions” or “investing in fossil fuels.” It communicates the gravity and urgency of the irreversible destruction being inflicted on the environment. It unambiguously casts major polluters as “villains,” perpetrators of a crime (emphasis added).

No protection

National laws do not protect the suspects. Under the proposed definition of the international panel, ecocide means “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” Note that “unlawful,” which is broader than “illegal,” is the gateway to disregarding permits for emissions and compliance of activities and products with national laws.

The main trick is that this definition does not require any actual damage; knowledge of likely damage in the future is enough—which is a given, in light of the “settled science” set forth in the IPCC reports. Fundamental principles of criminal law are merely an afterthought, if they are on the radar screen at all.

Torturing human rights and criminal law

Needless to say, the ECHR’s suggestion that governments “torture” their citizens by implementing “inadequate climate policy” is both insulting to torture victims and unlawful. The inclusion of torture in a climate-policy lawsuit is the culmination of the Court’s progressive move away from a human rights adjudicator to a social policymaking institution. This activism has not only harmed the Court’s reputation as an impartial court of law but has also created serious problems for national legislatures faced with the often unhinged policy mandates imposed by the Court.

To be sure, we do have a torture problem, but it is not the European climate policymakers who are doing the torturing. Rather, the Court itself has tortured the law to fit its own ideology.

The Court tortured the European Convention on Human Rights until it confessed that it is a program for progressive politics. It tortured the right to life and several other human rights until they agreed to include within their scope a whole series of so-called positive obligations, which only the Court gets to define. Perhaps most egregious, the Court tortured the Convention until it gave the Court the right to waive essential requirements imposed by the Convention to eliminate any limits on its jurisdiction, which then allowed the Court to move forward with the first climate change case, which it so desperately wanted.The crime of climate change

The use of criminal law to pursue climate politics is a new chapter in the climate-litigation saga. Climate activists have discovered criminal law as a tremendously effective tool for climate politics. Governments and corporations can be subordinated through civil and human rights law, but to put pressure on corporate executives and politicians, criminal law is much more effective. Criminal law is the crowbar that pries open the doors to the boardrooms and the chambers where policy decisions are made.

What is remarkable is that the activists include not only the nongovernmental organizations that claim to “fight for the climate” but also Europe’s highest judges at the European Court of Human Rights. Are the limits on its authority really lifted by the self-declared crisis?

Lock them up!

In totalitarian states, political dissidents are controlled in three ways: they are removed from public life as a “danger to public order”; they are placed in psychiatric hospitals, since they suffer from mental illness; or they are imprisoned because they have committed crimes. The climate movement’s latest move pursues this third route of “delegitimization” and “denormalization” of its political opponents and those who disagree with the movement.

According to the climate movement, the alleged climate crisis would require urgent action to avert the impending catastrophe and save the planet and humanity. In its view, this requires that democracy, fundamental principles of law, and the limits of judicial power are set aside. In this struggle for survival, the climate movement has concluded that greenhouse gas emissions must be criminalized so that climate deniers can be locked up. Unfortunately, the ECHR has fallen victim to the emotional appeal of the movement’s rhetoric.

Threats to freedom

The climate movement’s strategy is clear: torture and ecocide must be part of its toolbox so that the sinners can be converted, deniers can be punished, and climate utopia can be realized. Inevitably, however, “climatism” results in the suppression of freedom and opens the path to climate totalitarianism. Ironically, the ECHR, which was created in the aftermath of the destruction of the Nazi totalitarian regime to act as a legal bulwark safeguarding individual liberty, has placed itself as the judicial enabler of this process.

See also Q&A Why So Many Climate Skeptics

 

 

Lord Monckton Fires Back at Climatist Hit Job

Monckton emblem

The Viscount Monckton of Brenchley

H/T to Climate Depot for reporting that Lord Monckton has issued an extensive rebuttal as well as threatening legal action against a libelous article calling him a “liar” multiple times. The entire document is enjoyable to read, given his English fluency and writing style. In this post I will focus on several substantial points regarding climate science, whereby consensus suppositions are falsified in the response.
The rebuttal is Letter before claim in libel

Overview

From Monckton to the defendants’ editor: (in italics with my bolds)

Sir, – I have received two offensive emails – dated 3 April and 27 May 2021 – from one S. Bishop, who says he is writing an article, inferentially about global warming and my research interest therein. Bishop appears intent on seeking to maintain that I have changed my position from skepticism of global warming to acceptance of it, even though I have expressly told that it is the other way about.

The tactic of falsely alleging that those who had disagreed with the orthodoxy have come to agree with it after all (when in my case precisely the reverse is true) is one that I have seen before. The last time this happened, a silly article was published in a national newspaper. I complained. The “journalist” in question – actually a far-Left activist – was deservedly dismissed.

Therefore, I thought it fair to alert you at once to Bishop’s dishonest attempt to deploy the same technique of artful but wilful misrepresentation, inferentially as part of a doomed attempt to convey the false impression that there is no legitimate scientific debate about the extent of the anthropogenic contribution to global warming, or about the expected impacts of warmer weather worldwide.

Discussion

There follows description of instances where S. Bishop made statements that misrepresent what he himself knew contrary to what he wrote. Then Monckton copies his response to S. Bishop’s memo:

One of the nasty tactics used by climate Communists is the attempt to suggest that skeptics have changed their stance from skepticism to acceptance of the Party Line. I once had to have a journalist fired from a national newspaper for writing a silly piece suggesting what you are now unpleasantly and inaccurately suggesting.

In my case, it is precisely the other way about. At first I went along with the Party Line: but then, in 2006, the CEO of a boutique hedge-fund in London asked me to investigate the global warming question. When I did so, I found that the world had been misled. I reported accordingly, and a summary of my 80-page report eventually appeared in a national newspaper, drawing hundreds of thousands of hits in just two hours (after which the newspaper’s website crashed). That report, and all subsequent articles, papers and speeches by me, acknowledged what is self-evident – namely, that returning to the atmosphere some of the CO2 that was formerly present there (7000 ppmv in the Neoproterozoic, 420 ppmv today) might be expected to cause some warming, if one waited long enough. The question is not whether or not there has been or will be warming: there has been, and there will be. The question is how much – or, rather, how little.

Monckton then dismisses item by item the assertions of lies. Many of them are rhetorical tricks, such as taking statements out of the historical context, or hiding remarks made to audiences; some so-called “lies” involve changing the wording of what Monckton wrote or said.

The Essential Dichotomies: Facts on the Ground which Climatists Deny

Polar Bears Are Thriving

In 2016 Monckton had told a Montana audience: ‘So you don’t have to worry about the cuddly polar bears. They are going to be just fine.”

Monckton2

Monckton2aI had made my remarks in the context of Al Gore’s movie, in which he had said polar bears were drowning due to loss of ice in the Beaufort Sea. However, in the period immediately before he began making his movie – the period during which he said polar bears had died – sea-ice concentration in the Beaufort Sea had increased (above).

Greenland Ice Sheet is Not Melting

In New Zealand, Monckton claimed: “In Greenland, the ice did not melt 8000 years ago and it isn’t melting today.”

Monckton3a

From 1991-2003, above 1500 the ice in Greenland had thickened by 2 feet. There had been little change below 1500 m (above).

Monckton3b

Over the past 8000 years, temperature at the summit of the Greenland ice sheet has fallen by 1.5 degrees, notwithstanding CO2 concentration increasing from 260 ppmv to 420 ppmv today. Once again the defendants have sought to use evidence, from one side of the debate only, some of it unavailable at the time when I spoke.

Temperature Trends Have Been Inflated by Adjustments to the Terrestrial Temperature Dataset

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The above graph shows how many times the GISS global mean surface temperature anomaly for January 1910 and January 2000 were altered between May 2008 and May 2021, with the overall effect of making it appear that the warming between the two dates was close to 50% greater than the original measurements had suggested.

Great Barrier Reef Not Threatened by Global Warming

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The graph above shows the sea surface temperatures in the Great Barrier Reef. It shows no trend for almost 30 years – the period before I made the speech in question. I cannot fairly be accused of lying about trends that may have occurred after I spoke.

Extreme Heat Was a Problem Back in the 1920s and 30s

Monckton8

Hansen Wildly Exaggerated Future Warming in His 1988 US Senate Testimony

Monckton5

Hansen’s graph was indeed exaggerated (see above). In 1988, in now-notorious testimony before the U.S. Senate, he predicted global warming at a rate equivalent to 3.2 C° per century (broadly equivalent to equilibrium sensitivity to doubled CO2) on a business-as-usual emissions scenario (and it is the business-as-usual emissions scenario that has happened since). However, anthropogenic warming has proven to be little more than a third of his predicted business-as-usual rate (red curve and trend above). Indeed, it is below even the unrealized scenario (green) in which the world was supposed to cease all emissions of CO2 from 2000 onwards (it did no such thing). The trend in observed warming is overlaid on Hansen’s red, yellow and green scenarios in blue. The anthropogenic 70% fraction (Wu et al., 2019) of the observed warming is shown in purple.

Today is Not Warmer than Medieval Times

Monckton6

Temperatures in the mediaeval climate optimum were at least as warm as, and usually warmer than, the present. The fact that grapes now grow in very small quantities in lowland Scotland and in the Hebrides, influenced by the Gulf Stream, merely emphasize that temperatures are beginning to recover towards those attained in the mediaeval climate optimum, when grapes were even grown in the Great Glen, a part of the Highlands where it would be very difficult to grow grapes in today’s colder conditions.

Globe No Longer Warming

There has now been no global warming for about six years. The short bursts of warming that occur every five and a half years or so are associated with the naturally-occurring positive cycles of the el Nino Southern Oscillation, which appears to be driven chiefly by crustal deformation in the tropical Eastern Pacific, where the tectonic subduction rate is noticeably greater than anywhere else. The deformation is caused by local solar-system celestial mechanics, and the resultant warming comes from below, through subocean volcanism along the subduction line. It is then distributed worldwide via the thermohaline circulation, which, contrary to some silly reports, cannot cease to operate while the wind blows and the Earth rotates.

My image and comment:

gmt-warming-events

The animation is an update of a previous analysis from Dr. Murry Salby. These graphs use Hadcrut4 and include the 2016 El Nino warming event. The exhibit shows since 1947 GMT warmed by 0.8 C, from 13.9 to 14.7, as estimated by Hadcrut4. This resulted from three natural warming events involving ocean cycles. The most recent rise 2013-16 lifted temperatures by 0.2C. Previously the 1997-98 El Nino produced a plateau increase of 0.4C. Before that, a rise from 1977-81 added 0.2C to start the warming since 1947.

Importantly, the theory of human-caused global warming asserts that increasing CO2 in the atmosphere changes the baseline and causes systemic warming in our climate. On the contrary, all of the warming since 1947 was episodic, coming from three brief events associated with oceanic cycles.

 

 

 

 

 

 

 

 

Supremes Asked to Rule on EPA Energy Authorities

wrecking_ball_destroyEPABackground from Reed Smith lawyers The fall of Trump’s Affordable Clean Energy Rule and the strengthened EPA authority to regulate greenhouse gases.  Excerpts in italics with my bolds

The Affordable Clean Energy Rule

The EPA promulgated the ACE Rule in 2019 under the CAA, replacing the Obama administration’s 2015 Clean Power Plan (CPP). Both rules sought to reduce GHG emissions from the power sector; but where the CPP implemented broader industry-wide mechanisms, the ACE Rule limited reduction efforts to the actual source power plants.

The 2015 CPP offered “beyond the fenceline” tools for states to reduce emissions by replacing fossil fuels with renewable energy sources and participating in emissions credit-trading programs; however, in February 2016 the U.S. Supreme Court stayed the implementation of the CPP pending litigation in the D.C. Circuit. During the stay and subsequent freeze of litigation, the Trump administration rescinded the CPP and promulgated the ACE Rule.

In promulgating the ACE Rule, the Trump EPA took an alternative view of the CAA than the Obama EPA and reasoned that the CAA expressly limited the EPA’s power to only “at the source” emissions reduction options, such as heat rate improvement technologies. As a result, the Trump administration removed all of the CPP’s “beyond the fenceline” options and limited emissions restrictions to those applied directly to power plants.

DC Circuit Court of Appeal Ruling January 19, 2021

Judges Millett and Pillard of the D.C. Circuit Court disagreed with the (Trump) EPA’s interpretation. In the majority opinion, the Court concluded that there is “no bases—grammatical, contextual, or otherwise—for the EPA’s assertion” that its authority was limited to “at the source” controls. In the end, the Court vacated the ACE Rule and remanded it back to the EPA just in time for the Biden administration to take over.  The Court’s decision appears to clear the way for the Biden administration to regulate GHG emissions from the power sector.

In his first week in office, President Biden has taken a number of actions to undo many of the Trump administration’s environmental policy decisions, including rejoining the Paris Climate Accord. The new Biden EPA has also requested that the Department of Justice have all Trump-era litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017 and January 20, 2021. Based on the Court’s show of support and the Biden Administration’s actions within the first week, we may see some of the Obama-era or similar regulation brought back to life in the coming months.

Petitions to Supreme Court April 29 and 30, 2021

The May Update at Columbia Climate Law Blog reports the latest development bringing the issue to Supreme Court attention:  States and Coal Company Sought Review of D.C. Circuit Decision Vacating Affordable Clean Energy Rule  Excerpts in italics with my bolds.

Two petitions for writ of certiorari were filed in the U.S. Supreme Court seeking review of the D.C. Circuit’s January opinion vacating EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The first petition was filed by West Virginia and 18 other states that had intervened to defend the repeal and replacement rule, known as the Affordable Clean Energy rule. The states’ petition presented the question of whether Section 111(d) of the Clean Air Act constitutionally authorizes EPA “to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements.” They argued that Congress had not clearly authorized EPA to exercise such “expansive” powers and that the D.C. Circuit majority opinion’s interpretation was foreclosed by the statute and violated separation of powers. The states argued that the Supreme Court’s stay of the Clean Power Plan while it was under review by the D.C. Circuit in 2016 signaled that the legal framework for the Clean Power Plan “hinges on important issues of federal that EPA then—and the court below now—got so wrong this Court was likely to grant review.” The states contended that further delay in the Court’s resolution of these “weighty issues” would have “serious and far-reaching costs.”

The second petition was filed by a coal mining company. The coal company’s petition presented the question of whether Section 111(d) “grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.” The company argued that the D.C. Circuit erred by “untethering” Section 111(d) standards from the existing source being regulated. Like the states, the company contended that Supreme Court had already recognized the critical importance of this question when it stayed the Clean Power Plan.

The company argued that debates regarding climate change and policies to address climate change “will not be resolved anytime soon” but that “what must be resolved as soon as possible is who has the authority to decide those issues on an industry-wide scale—Congress or the EPA.”

EPA’s response to the petitions is due June 3, 2021. West Virginia v. EPA, No. 20-1530 (U.S. Apr. 29, 2021); North American Coal Corp. v. EPA, No. 20-1531 (U.S. Apr. 30, 2021).

Comment:  The question of decision authority seems especially urgent since no one knows who is the actual decider for the Executive Branch.

 

Biden’s EPA Goes Rogue on HFCs

earth_ozone_1
David Wojick writes at CFACT about the reckless move by EPA against vital industrial uses of hydrofluorocarbons  Crazy HFC phaseout is coming Excerpts in italics with my bolds.

In my first article — “Economically destructive cap and trade for HFCs is here” — I looked at the Kigali Amendment part of the American Innovation and Manufacturing Act or AIM. There the big problem is that the HFC cap is based on 8-10 year old data, which is mostly missing and probably inaccurate for today.

However, AIM adds some major rules to Kigali, rules which have their own problems.

In particular AIM singles out 6 industries and applications that use a lot of HFCs for special treatment. They get what are called “mandatory allocations” of allowances. In principle this means they get all the allowances they need for certain uses, for the next five years. Whether this actually happens or not is a serious problem.

The CFACT article goes on to explain how dangerous and reckless is this initiative by Biden’s EPA.  But the intended regulation is also illegal, and may end up in the Supreme Court since the plan is to violate a ruling of the DC Court of Appeals, written by then Judge Brett Kavanaugh.

dc-court-of-appeals

Background from previous post  Gamechanger: DC Appeals Court Denies EPA Climate Rules

A major clarification came today from the DC Court of Appeals ordering EPA (and thus the Executive Branch Bureaucracy) to defer to Congress regarding regulation of substances claimed to cause climate change.  While the issue and arguments are somewhat obscure, the clarity of the ruling is welcome.  Basically, the EPA under Obama attempted to use ozone-depleting authority to regulate HFCs, claiming them as greenhouse gases.  The judges decided that was a stretch too far.

The Court Decision August 8, 2017

The EPA enacted the rule in question in 2015, responding to research showing hydroflourocarbons, or HFCs, contribute to climate change.

The D.C. Circuit Court of Appeals’ 2-1 decision said EPA does not have the authority to enact a 2015 rule-making ending the use of hydrofluorocarbons commonly found in spray cans, automobile air conditioners and refrigerators. The three-judge panel said that because HFCs are not ozone-depleting substances, the EPA could not use a section of the Clean Air Act targeting those chemicals to ban HFCs.

“Indeed, before 2015, EPA itself maintained that Section 612 did not grant authority to require replacement of non ozone-depleting substances such as HFCs,” the court wrote.

“EPA’s novel reading of Section 612 is inconsistent with the statute as written. Section 612 does not require (or give EPA authority to require) manufacturers to replace non ozone-depleting substances such as HFCs,” said the opinion, written by Judge Brett Kavanaugh.

Contextual Background from the Court Document On Petitions for Review of Final Action by the United States Environmental Protection Agency  Excerpts below (my bolds)

In 1987, the United States signed the Montreal Protocol. The Montreal Protocol is an international agreement that has been ratified by every nation that is a member of the United Nations. The Protocol requires nations to regulate the production and use of certain ozone-depleting substances.

As a result, in the 1990s and 2000s, many businesses stopped using ozone-depleting substances in their products. Many businesses replaced those ozone-depleting substances with HFCs. HFCs became prevalent in many products. HFCs have served as propellants in aerosol spray cans, as refrigerants in air conditioners and refrigerators, and as blowing agents that create bubbles in foams.

In 2013, President Obama announced that EPA would seek to reduce emissions of HFCs because HFCs contribute to climate change.

Consistent with the Climate Action Plan, EPA promulgated a Final Rule in 2015 that moved certain HFCs from the list of safe substitutes to the list of prohibited substitutes. . .In doing so, EPA prohibited the use of certain HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators, and foams – even if manufacturers of those products had long since replaced ozonedepleting substances with HFCs. Id. at 42,872-73.

Therefore, under the 2015 Rule, manufacturers that used those HFCs in their products are no longer allowed to do so. Those manufacturers must replace the HFCs with other substances that are on the revised list of safe substitutes.

In the 2015 Rule, EPA relied on Section 612 of the Clean Air Act as its source of statutory authority. EPA said that Section 612 allows EPA to “change the listing status of a particular substitute” based on “new information.” Id. at 42,876. EPA indicated that it had new information about HFCs: Emerging research demonstrated that HFCs were greenhouse gases that contribute to climate change. See id. at 42,879. EPA therefore concluded that it had statutory authority to move HFCs from the list of safe substitutes to the list of prohibited substitutes. Because HFCs are now prohibited substitutes, EPA claimed that it could also require the replacement of HFCs under Section 612(c) of the Clean Air Act even though HFCs are not ozone-depleting substances.

EPA’s current reading stretches the word “replace”  beyond its ordinary meaning. . .
Under EPA’s current interpretation of the word “replace,” manufacturers would continue to “replace” an ozone-depleting substance with a substitute even 100 years or more from now. EPA would thereby have indefinite authority to regulate a manufacturer’s use of that substitute. That boundless interpretation of EPA’s authority under Section 612(c) borders on the absurd.

In any event, the legislative history strongly supports our conclusion that Section 612(c) does not grant EPA continuing authority to require replacement of non-ozone-depleting substitutes.. . In short, although Congress contemplated giving EPA broad authority under Title VI to regulate the replacement of substances that contribute to climate change, Congress ultimately declined.

However, EPA’s authority to regulate ozone-depleting substances under Section 612 and other statutes does not give EPA authority to order the replacement of substances that are not ozone depleting but that contribute to climate change. Congress has not yet enacted general climate change legislation. Although we understand and respect EPA’s overarching effort to fill that legislative void and regulate HFCs, EPA may act only as authorized by Congress. Here, EPA has tried to jam a square peg (regulating non-ozone depleting substances that may contribute to climate change) into a round hole (the existing statutory landscape).

The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. See, e.g., Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014). First, EPA’s well intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue. Second, Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.

Footnote:  Looks like some judges found their big boy pants and applied US constitutional separation of powers against runaway executive climate actions.  Would such a decision have come without a skeptical President?

Could this be the first breach in the wall of unproven, unwarranted, federally funded climate activism?

Water rushes over damaged primary spillway at Oroville Dam in Northern California

Mann vs. Steyn Update: Getting to the Truth

81l2bhewvc4l

Thanks to the Manhattan Contrarian for providing a March update on the eight-year long legal action conducted by M. Mann against M. Steyn.  His post is Update On Michael Mann v. Mark Steyn Litigation.  Excerpts in italics with my bolds and images.

Mann’s central allegation in his case against Steyn is that this passage is defamatory because the “hockey stick” graph is not “fraudulent”; and therefore Steyn’s statement that the graph is “fraudulent” is false.

Remarkably, eight and a half years into this case, only now is the truth or falsity of the claim that the “hockey stick” graph is fraudulent being addressed.

The issue was finally raised in a motion for summary judgement filed by Steyn on January 22 — although almost as an aside, in a motion dealing with many other issues; and then the issue was much more squarely addressed in a response by Steyn to a motion for summary judgment by Mann, filed by Steyn on March 3. I have been sent a copy of the March 3 filing, but I have not been able to find a link for it online.

The Steyn motion papers point to three ways in which the Hockey Stick graph is fraudulent.

hide-the-decline-using-mikes-nature-trick

  1.  Mann Deleted Data Adverse to the “Hockey Stick” Shape

Of the three, the most compelling is the deletion by Mann of certain adverse data that would have destroyed the neat “hockey stick” shape of the graph. The graph shows a reconstruction of world atmospheric temperatures from about the year 1050 to 2000, where the first 900 years have temperatures flat or slightly declining, followed by a sharp upward move in the last 50 or so years. The 900 year flat period was derived from several collections of data from tree rings, one of which was provided by a Mann colleague named Keith Briffa. However, in the most recent years (post-1960) the Briffa series showed a decline in temperatures — an inconvenient fact that would have greatly undermined the intended visual impact of the graphic. Mann then decided simply to delete the portion of the Briffa data post-1960, while still using the rest. From the Steyn March 3 submission:

The [Hockey Stick graph as published in the IPCC’s Third Assessment Report in 2001, in a portion written by lead author Mann] omitted tree ring proxy data collected by climate scientist Keith Briffa that showed a decline in temperatures after 1960, a message inconsistent with the prized hockey stick shape. . . . The IPCC TAR did not disclose the deletion of this data. . . . As lead author, Mann decided to omit the Briffa data without the input of his other lead authors.. . . Mann’s own collaborators cautioned him against the deletion. IPCC TAR Coordinating Lead Author Chris Folland wrote to Mann that Briffa’s data “contradicts the multiproxy curve and dilutes the message rather significantly.”. . . Briffa himself urged Mann not to succumb to “pressure to present a nice tidy story” by “ignor[ing]” his post-1960 results. . . . Mann agreed with them on the merits but bemoaned the data’s political impact: “[I]f we show Keith’s series . . . skeptics [will] have a field day.” . . . To prevent a “skeptics’ field day,” he chose to delete the data.

One would think that this is about as clear a demonstration of scientific fraud as it is possible to have.

2.  Mann “Cherry-Picked” Data to Show Flat Temperature Trend

huang-pollack-boreholes-97-close-up-600

3. Mann Showed One Record Upside Down to Support the Desired Shape

And as indicated, this is just one of three instances of fraud in the Hockey Stick graph that are set forth in detail in Steyn’s March 3 submission. The other two involve: (1) “cherry picking” of data, in the selection of proxy data series to show a flat-to-declining temperature trend from 1050 to 1950, by simply omitting to use any of the many available series that show the existence of a “medieval warm period” warmer than the present, and (2) misinterpreting one series to use the results upside down and then, when the error was pointed out, continuing to use the series in that way because it supported the desired visual presentation.

mann-et-al-corrected

The original MBH graph compared to a corrected version
produced by MacIntyre and McKitrick after undoing Mann’s errors.

Anyway, Mann gets to throw at least one more brief into this mix, and then we will await the court’s decision. As clear-cut as this may appear from the excerpt I provided, the court’s decision could well not come out until late in the year. If sumary judgment is denied, there will then be a trial. Another possibility is that the court grants summary judgment to Mann as plaintiff. I find that possibility almost too ridiculous to contemplate, but the fact is that when things get as politicized as the “climate change” thing has become, the human mind loses almost all rational capability.

Background: Rise and Fall of the Modern Warming Spike

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The first graph appeared in the IPCC 1990 First Assessment Report (FAR) credited to H.H.Lamb, first director of CRU-UEA. The second graph was featured in 2001 IPCC Third Assessment Report (TAR) the famous hockey stick credited to M. Mann.

Advance Briefing for Glasgow COP 2021

 

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

Media Climate Hype is a Cover Up

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

Fighting Global Warming is Absurd, Costly and Pointless.

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

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

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

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

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

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

How the Media Throws Up Flak to Defend False Suppositions

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

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

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

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

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

Alarming Weather and Wildfires

But: Weather is not more extreme.


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

post-glacial_sea_level

Litany of Changes

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

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

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

We’re seeing glaciers melting, sea level rising.

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

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

We’re seeing more intense storms.

But: Arctic Ice has not declined since 2007.

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

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

And many aspects follow quasi-60 year cycles.

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

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

 

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

But CO2 relation to Temperature is Inconsistent.

But: The planet is greener because of rising CO2.

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

But: Renewables are not ready for prime time.

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

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

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

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

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

An Example:

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

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

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

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

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

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

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

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

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

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

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

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

Summary:  From this we learn three things:

Climate warms and cools without any help from humans.

Warming is good and cooling is bad.

The hypothetical warming from CO2 would be a good thing.

 

Latest Court Ruling re EPA and CO2

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

Overview of Ruling on Affordable Clean Energy Rule

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

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

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

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

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

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

The Back Story–How We Got Here

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

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

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

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

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

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

Background Concerning EPA and Carbon Dioxide

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnote: See post The Poisonous Tree of Climate Change

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