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.”

A monkey wrench in the Works.

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.

A monkey wrench in the Works.

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 significance and implications are described in an article by Karen Savage at Climate Liability News Appeals Court OKs Pre-Trial Appeal of Kids Climate Case, Siding With Government  Excerpts in italics with my bolds.

The Ninth Circuit Court of Appeals has granted a petition by the Trump administration for a rare pre-trial appeal in the landmark constitutional climate lawsuit, Juliana v. United States. The appeals court agreed to the interlocutory appeal, which leaves the future progress of the case unclear.

Generally, interlocutory appeals consider certain aspects of a case while allowing other issues to proceed. The young plaintiffs in the case, 21 young people from around the country, have asked District Court Judge Ann Aiken to clarify how the case will move forward while the Ninth Circuit considers its appeal. They argue that they should be allowed to continue the discovery process and other pre-trial proceedings.

The Ninth Circuit’s decision came as somewhat of a surprise because it had denied repeated attempts by the government to short-circuit the case before trial. A three-judge panel voted 2-1 to grant this request, while denying other motions, including the government’s fourth writ of mandamus request. The writ of mandamus is even rarer than an interlocutory appeal because it requires the higher court to decide the lower court clearly abused its judicial power.

But granting the interlocutory appeal still throws the case into uncertainty.

Chief Judge Sidney Thomas and Circuit Judge Marsha Berzon voted for the government’s motion while Circuit Judge Michelle Friedland dissented.

The Ninth Circuit Dec.26, 2018 ruling (here) states:

An interlocutory appeal under 28 U.S.C. § 1292(b) is authorized when a district court order “‘involves a controlling question of law as to which there is substantial ground for difference of opinion’ and where ‘an immediate appeal from the order may materially advance the ultimate termination of the litigation.’” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir. 2011) (quoting 28 U.S.C. § 1292(b)). The district court properly concluded that the issues presented by this case satisfied the standard set forth in § 1292(b) and properly exercised its discretion in certifying this case for interlocutory appeal.

The petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) is granted. Within 14 days after the date of this order, petitioners shall perfect the appeal in accordance with Federal Rule of Appellate Procedure 5(d). All pending motions are denied as moot.

Previously, the petitioners (Our Children’s Trust) have repeatedly argued for a 50 day trial first and then appeal afterward.

In a reply brief, the federal government pushed back, telling the justices that it had made every possible effort in the lower courts to avoid reaching this point, but had been unsuccessful. The government emphasized that what the plaintiffs are asking the federal courts to do is extraordinary, “nothing less than a complete transformation of the American energy system – including the abandonment of fossil fuels.” Such a request, the government continued, “has no place in federal court,” so that granting the government a reprieve from the upcoming trial would “preserve the judiciary’s essential role under the Constitution.”

The government added that, contrary to the plaintiffs’ assurances, the prospect winning on appeal after an “extensive” trial had already taken place would provide little comfort to the government, because of the enormous amount of resources that would have to be devoted to pretrial preparations and the trial itself.

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 Endagerment Finding see: GHGs Endangerment? Evidence?

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An editorial from National Review summarizing how the courts function as Michael Mann’s protective shield  NR Won’t Be Cowed by a Litigious Michael Mann  December 21, 2018.  Excerpts below with my bolds.

At this rate, Jarndyce v. Jarndyce will be replaced in the Western canon as the go-to example of the court case that never ends by National Review, Inc. v. Michael E. Mann, which is now well into its seventh year as a live proposition and, alas, showing no end in sight.

For those who have forgotten, this is the 2012 case in which Mann sued National Review for libel over a 270-word blog post that criticized his infamous “hockey stick” graph portraying global warming, in response to which National Review refused to acquiesce to what was, and remains, nothing less than an attempt to use the law to bully the press into submission. That this case is both frivolous in nature and clear-cut in National Review’s favor seems to be obvious to everyone except for Michael Mann and the D.C. Court of Appeals. Indeed, in the years since Mann made his play, National Review has been joined by a veritable Who’s Who of American media organizations — including, but not limited to, the ACLU, the National Press Club, Comcast, the Cato Institute, the Washington Post, Time Inc., Reporters Committee for Freedom of the Press, and the Electronic Frontier Foundation, all of which have filed amicus briefs on NR’s side. Tellingly, National Review has also been supported by the City of Washington, D.C., in which jurisdiction the case was brought. And yet, inexplicably, the D.C. Court of Appeals continues to drag its feet.

This is extraordinary, especially given that at stake here is the integrity of the First Amendment. It is extraordinary foremost because National Review’s case is both straightforward and strong: that it is not, and it has never been, the role of the courts to settle literary or scientific disputes. But it is also extraordinary because National Review’s case is being heard under rules laid out by Washington, D.C.’s robust “anti-SLAPP” law, the explicit purpose of which is to make it more difficult to harass people and organizations with frivolous libel threats and thereby to protect a sturdy culture of free speech. How, we ask, can this be reconciled with a case such as ours, in which, among other inexplicable delays, the court has taken two years to add a single footnote to the records (and modify another)? That a slam-dunk case that is being examined under an expedited process should have yielded so many years of expensive radio static is a genuine national disgrace, and should be widely regarded as such.

National Review neither encourages nor enjoys protracted, expensive, tedious litigation. Indeed, it is our resolute view that questions such as these must be resolved outside of the courtroom. But we will be cowed neither by pressure nor by the passage of time, and we are proud of our role as a champion of the First Amendment. To those who would abridge, undermine, or attempt to circumvent that bulwark of free expression, our response is, as it ever was: Get Lost.

See also:  Rise and Fall of the Modern Warming Spike