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

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

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

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

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

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

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

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

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

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

From the Majority Opinion:

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

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

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

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

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

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

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

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

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

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

From the Minority Dissenting Opinion

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

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

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

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

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

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

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

From Justice Scalia’s Dissenting Opinion

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

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

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

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

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

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

Conclusion

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

Footnote:  

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

 

 

Background:

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

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

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

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

California kindergartens with the highest medical exemption rates include:

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

Linking Fear of Vaccines with Fear of Fossil Fuels

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnote:

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

Oil is finite and must run out.

Pundits are optimists, either conucopians or industry shills.

Reserve numbers are not reliable.

Only one barrel is found for every four consumed.

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

Frackingphobia: Facts vs. Fears

Why People Rely on Pipelines

 

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

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

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

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

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

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

Right to Discovery Upheld by New York Supreme Court

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

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

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

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

New York’s Conflicting Statements

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

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

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

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

New York Seeks Protective Order

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary

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

Postscript:

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

 

A kangaroo court is a court that ignores recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court’s legal or ethical obligations. (Wikipedia)

The latest example is provided last month by Chief Justice Preston of the New South Wales Land and Environment Court  dismissing on appeal the proposal to construct a new open-cut coal mine in the state’s Hunter Valley.  His ruling rested on dubious suppositions.

The Chief Justice found that “all anthropogenic GHG emissions contribute to climate change”.

The Chief Judge invented a “wrong time test”. To pass that test, a fossil fuel proponent must now establish why their project should be allowed to proceed at this time in history, when it is clearly recognized that there is an urgent need for rapid and deep decreases in greenhouse gas emissions. To achieve this, most fossil fuel reserves need to remain in the ground unburned.  The test asserts that a practical consequence of reaching the emission reductions required by the Paris Accord to achieve the 1.5 to 2°C goal is that coal production needs to reduce rather than expand.

So we have come to this.  A sitting judge declares a prevalent social opinion regarding the future is the law of the land.  A legal business venture is blocked on ideological grounds, because some believe now is the “wrong time” in history for such an undertaking.  Kangaroos are hopping around like crazy.

It is fortunate indeed that this judge is not hearing the Juliana vs. US case.  But then that is actually a legal proceeding where kangaroos or unicorns do not have standing.  The precedents and body of law stacked against these climate cases is summarized in the most recent brief by the appellants (US Govt.) arguing against the claims of activists/alarmists (plaintiffs).

APPELLANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL  February 19,2019 Some points of climate caselaw excerpted in italics.

“the unprecedented nature of this ambitious attempt to throttle important government functions superintending broad swaths of the national economy”

“The injuries identified by Plaintiffs arise from a diffuse, global phenomenon that affects every other person in their communities, in the United States, and throughout the world.”

“Plaintiffs “simply ignore that Defendant agencies and officers do not produce greenhouse gases, but act to regulate those third parties that do: innumerable businesses and private industries.”

“Plaintiffs have not even begun to articulate a remedy within a federal court’s authority to award that could meaningfully address global climate change as the claimed cause of their injuries.”

“Plaintiffs ask the district court to review and assess the entirety of the representative branches’ decisions relating to climate change and then to pass on the comprehensive constitutionality of those policies, programs, and inaction in the aggregate and then enter and enforce a sweeping decree against the government writ large.”

“Thus, the Due Process Clause imposes no duty on the government to protect persons from harm inflicted by third parties that would violate due process if inflicted by the government.”

“Every instance” in which this Court has “permitted a state-created danger theory to proceed has involved an act by a government official that created an obvious, immediate, and particularized danger to a specific person known to that official.”

“Plaintiffs seek to remedy carbon emissions, myopically attributing them to the U.S. government and ignoring that the global mix of carbon levels is (even on their own theory) predominantly the product of the actions of foreign actors the world over.”

“All of Plaintiffs’ claimed harms result from what they allege is the government’s general failure to protect the environment. Yet Plaintiffs have no constitutional right to particular climate conditions, and they may not resort to the state-created danger exception to circumvent that limitation.”

“This allegation of slowly-recognized, long-incubating, and generalized harm by itself distinguishes their claim from all other state-created danger cases on which they and the district court relied.”

“First, there is no fundamental right to a “climate system capable of sustaining human life.”

“The Supreme Court definitively rejected an attempt to use the federal common law of nuisance to centralize the management of carbon dioxide emissions in a single district court, operating outside the purview of the comprehensive Clean Air Act.”

“It is not clear how much of this sea level rise can be avoided by slowing down climate warming or even cooling the planet again.”

“Plaintiffs’ reliance on their self-described “deep anger, frustration, depression, and feeling of betrayal,” Motion 23-25, is likewise insufficient to establish irreparable harm. First, if this Court were to recognize feelings as irreparable injury, then every plaintiff who passionately disagrees with government action — i.e., most if not all plaintiffs — would satisfy the injury requirement.”

“Because Plaintiffs cannot demonstrate that their requested relief pending appeal would concretely impact climate change, the balance of equities tips heavily in favor of denying Plaintiffs’ motion.”

 

 

This looks more like the end of the climate litigation tunnel than an oncoming train.

Finally a federal district court judge puts on his big boy pants and calls a halt to the children’s climate crusade against the legal system.  Climate Liability News has the story Judge Tosses Penn. Case, Says Kids Climate Cases Have No Legal Merit  Excerpts in italics with my bolds.

A federal judge in Pennsylvania dismissed a climate lawsuit brought by an environmental organization and two children against the federal government. The lawsuit, Clean Air Council v. United States, claimed that Trump administration rollbacks of environmental regulations and other “anti-science” decisions violate Constitutional rights and the public trust.

In dismissing the claims on Tuesday, U.S. District Judge Paul Diamond scoffed at what he interpreted as a request that he “supervise any actions the President and his appointees take that might touch on ‘the environment.’”

Beyond ruling on this case, however, Diamond went further to rebuke U.S. District Judge Ann Aiken for her ruling in Juliana v. United States that the young plaintiffs had a Constitutional right to a livable climate. When Aiken ordered that lawsuit to trial in 2016, she said “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” becoming the first U.S. judge to recognize that right.

Diamond said that ruling is at odds with previous court decisions and “the Juliana Court certainly contravened or ignored longstanding authority.”

He also took issue with what guaranteeing a stable climate would entail, calling it “without apparent limit.”

In dismissing the case before him, Diamond said the Pennsylvania plaintiffs, who filed the suit in 2017, lacked standing. The two boys said their serious allergies and asthma were directly linked to the impacts of climate change, but Diamond said they failed to directly tie their injuries to government actions. Diamond said he interpreted this case as a political dispute. “Plaintiffs’ disagreement with Defendants is a policy debate best left to the political process,” he wrote.

Diamond was appointed to his post by President George W. Bush in 2004.

The Clean Air Council said in a statement it “respectfully disagrees with the decision” and is discussing the next steps with its counsel.

“The Trump administration continues to rely on junk science to implement reckless climate change policies in the face of indisputable U.S. and international scientific consensus. For decades, the U.S. government has acknowledged that climate change presents a clear and present danger to life, and represents an urgent and potentially irreversible threat to human societies and the planet. These acts of deliberate indifference are increasing U.S. contributions to climate change, thereby increasing the frequency and intensity of its life-threatening effects, and violating our constitutional rights,” said Joseph Otis Minott, executive director and chief counsel of the Clean Air Council.

“We are troubled that the opinion states the federal government ‘do[es] not produce greenhouse gases’ and that ‘climate change is the creation of those that pollute the air, not the Government,’” he added. “These statements are both irrelevant to our claims and factually incorrect.”

Diamond made clear he does not see a role for the judiciary in climate policy and argued that Aiken’s recognition of the public trust claims in Juliana was an incorrect expansion of that doctrine beyond its traditional concept governing only navigable waters.

“Plaintiffs seek to create an entirely new doctrine—investing the Federal Government with an affirmative duty to protect all land and resources within the United States,” Diamond wrote. “The Juliana Court alone has recognized this new doctrine. Again, that Court’s reasoning is less than persuasive.”

 

 

 

Previous posts have followed the twists and turns of the lawsuit Juliana vs. US, initiated and funded by Our Children’s Trust.  In November the Supreme Court signaled their desire that lower courts rein in the scope of the lawsuit.  The District Court backed off and now the Ninth Circuit Court will take up the appeal in advance of any trial activity.

The latest development is the US government (the Appellant) making its initial filing Feb. 1, 2019, now available for public scrutiny.

The document is Appellants’ Opening Brief Excerpt in italics with my bolds.

SUMMARY OF ARGUMENT

The district court first erred when it denied the government’s motion to dismiss this action. It erred again when it denied the government’s motions for judgment on the pleadings and for summary judgment. This Court should reverse for any of the following independent reasons:

1. Plaintiffs cannot establish any of the three requirements for Article III standing. Plaintiffs have only a generalized grievance and not the required particularized injury because global climate change affects everyone in the world. They cannot demonstrate causation because climate change stems from a complex, world-spanning web of actions across all fields of human endeavor, and Plaintiffs cannot plausibly connect their narrow asserted injuries — like flooding or drought in their neighborhoods — to any particular conduct by the government. In addition, Plaintiffs’ alleged injuries are not redressable because a single district judge may not (consistent with Article III and the equitable authority of federal courts) seize control of national energy production, energy consumption, and transportation in the ways that would be required to implement Plaintiffs’ demanded remedies.

Separate and apart from Plaintiffs’ failure to satisfy the three standing requirements, this action is fundamentally not a case or controversy under Article III. Plaintiffs did not ask the district court to resolve anything resembling the kind of dispute that gave rise to jurisdiction at common law or the adoption of Article III; Plaintiffs instead asked the district court to review all of the representative branches’ programs and regulatory decisions relating to climate change over the past several decades and then pass upon their constitutionality in the aggregate. No federal court has the power to perform such a sweeping policy review, and no federal court has ever done anything close to what Plaintiffs seek here.

2. Plaintiffs have failed to pursue any claim under the APA or any other remedial scheme established by Congress for review of federal agency action or inaction. At its core, Plaintiffs’ action challenges a vast number of federal agency actions and inactions, yet Plaintiffs have refused to comply with the requirements of the APA. Plaintiffs may not circumvent Congress’s considered judgment to channel such challenges through the APA by asserting a right to proceed directly under the Constitution or the courts’ equitable authority; the existence of the APA forecloses those potential causes of action.

3. Even if Plaintiffs could satisfy the foregoing threshold requirements, their constitutional claims are baseless and must be dismissed. Plaintiffs’ alleged fundamental right to a “livable climate” finds no basis in this Nation’s history or tradition and is not even close to any other fundamental right recognized by the Supreme Court. Plaintiffs’ reliance on the state-created danger exception is also misplaced; there is no reason to extend that narrow doctrine to these circumstances. Plaintiffs’ equal protection and Ninth Amendment claims are also meritless.

4. Finally, there is no federal public trust doctrine that binds the federal government. Even if such a doctrine did apply to the federal government, any common-law federal public trust doctrine is displaced by statute. In any event, the atmosphere is not within any public trust. The orders of the district court should be reversed, and this case should be remanded with instructions to dismiss the complaint.

Summary:

What a concept!  Let’s have judges decide national energy policy.  And when the economy fails because energy supply is too expensive and unreliable, will the black robes be accountable to the public?  Nope.  And let’s turn a courtroom over to members of a doomsday cult for 50 days so they can persuade the public of their beliefs and fears. Even worse idea. Let’s hope even the Ninth Circuit can see the folly in this proceeding.

For background on the lawsuit see:  Supremes Kick Kids Lawsuit Down the Road

For background on the false GHG Endangerment Finding see: GHGs Endangerment? Evidence?

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Horace Cooper writes at RealClear Energy January 18, 2019 America’s Communities Will Suffer if Lawsuits Against Energy Producers Succeed.  Excerpts in italics with my bolds.

Lawsuit abuse is costing Americans plenty and Louisiana illustrates just how absurd it can become. Drivers in that state pay the second-highest auto insurance rates in America thanks, in part, to its minimum $50,000 claim for jury trials, which is the highest in America. Just to stay in business, auto insurers must pass along those costs to Louisiana’s drivers.

But the real canary in the coal mine is that other insurance companies have just packed up and left the state. That’s a crucially important point because a greedy group of Louisiana trial lawyers have now targeted the state’s oil and gas industry for a multi-billion-dollar shakedown. For residents, the potential consequences could not be more ominous.

Law firms have teamed up with at least six parish governments in lawsuits alleging that the energy industry alone is responsible for the state’s coastal erosion problem. Never mind the Corps of Engineers’ levee system that on one hand helps prevent the Mississippi River from flooding, but on the other, prevents soil-building silt from reaching the wetland areas. And disregard the erosion impact of hurricanes and other storms. None of that matters to the trial lawyers who would reap a huge contingency fee award if they win.

The rational business decision for oil and gas producers in a hostile and costly legal environment would be to follow the insurance companies’ example and leave the state. The cost to local communities would be on the scale of a natural disaster. For starters, consider that last year 44,580 people in the state were employed directly in oil and gas production, earning $4.3 billion annually. That’s an annual average wage of more than $96,500, nearly double the state average. That doesn’t count those who enjoy retirement benefits from the energy industry or all the other community jobs that the energy industry supports. Louisiana is a state that needs more well-paying jobs and not frivolous lawsuits that put those jobs in jeopardy.

Now consider the state’s, parishes’ and cities’ ability to fund essential services for their citizens. The oil and gas industry alone accounted for 10 to 15% of state and local tax revenues annually, on average, over the past two decades. In fiscal year 2013, for example, energy companies paid nearly $1.5 billion in state taxes, representing about 14.6% of all the taxes, licenses and fees received by the state. That same year, parishes and cities took in $410 million in ad valorem taxes from energy producers, refiners and pipeline companies. Between 2006 and 2016, the oil and natural gas industry paid $14 billion just for the opportunity to do business in the state, according to the Louisiana Department of Natural Resources. If those revenue streams dried up, tough conversations about cutbacks at schools, police departments and hospitals would be taking place. Tax increases to plug the shortfalls would be considered even as thousands hit the unemployment lines.

The magnitude of the lawsuits’ potential to visit hardship upon Louisiana’s families cannot be overstated. The shame is that the litigation is without merit. Every legitimate scientific study has concluded that there are a number of factors causing coastal erosion, most of which have nothing to do with oil and gas exploration and production. In fact, the industry is part of the solution, having donated thousands of acres for scientific coastal and environmental research and having provided 25% to 33% of the overall cost for coastal erosion prevention and restoration efforts.

The only reason the oil and gas industry is being targeted exclusively is because the greedy trial lawyers see dollar signs. But by no means, however, is litigating against oil and gas companies for cash strictly a homegrown Louisiana cottage industry. The financially struggling cities of San Francisco and Oakland recently launched a lawsuit against top energy producers for anticipated damages from climate change, only to have the judge toss the case. Other municipalities filed similar litigation and now find they have some explaining to do.

It seems the left hand isn’t watching what the far-left hand is up to. San Mateo County, California, for example, claims in its lawsuit against the energy industry that there’s a 93% risk of a devastating climate-change-related flood by 2050. Yet its municipal bond offering to potential investors dismissively notes that it’s “unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur.” Such duplicity has opened the county to a potential SEC investigation for bond fraud and could result in taxpayers paying expensive legal fees.

If these baseless lawsuits by greedy plaintiff lawyers remain unchecked, it won’t be just oil and gas producers that get hurt. Consumers, taxpayers and families would also suffer the fallout. Ultimately, elected officials must be held accountable for reining in this manipulation of the courts for profit.

Horace Cooper is co-chairman of the Project 21 National Advisory Board, a senior fellow with the National Center for Public Policy Research and a legal commentator.