Native American protestors were confronted by security and armed law enforcement during demonstrations in 2016 against the Dakota Access Pipeline. Credit: Robyn Beck/AFP/Getty Images

Keystone XL pipeline is expected to draw protests from indigenous and environmental activists when construction begins, and many activists are worried law enforcement agencies may be planning surveillance and a militarized response. Now, the American Civil Liberties Union is accusing federal agencies of trying to hide the extent of these preparations, which the group says are clearly underway.

The story comes comes from Inside Climate News, who support leaving fossil fuels in the ground. ACLU Fears Protest Crackdowns, Surveillance Already Being Planned for Keystone XL Excerpts in italics with my bolds.

As more states consider harsh anti-protest laws, law enforcement trainings are raising red flags. The group accuses U.S. agencies of trying to hide the extent of it.

The ACLU and its Montana affiliate sued several federal agencies this week, including the Departments of Justice, Defense and Homeland Security, saying the agencies are withholding documents that discuss planning for the expected protests and any coordination among state and local authorities and private security contractors.

Fears about the law enforcement response follow the 2016 armed crackdown on people protesting the Dakota Access Pipeline, where authorities used tear gas and turned water cannons on protesters in freezing temperatures. Since then, dozens of bills and executive orders have been introduced in at least 31 states to clamp down on protests. Activists say the bills are part of a concerted campaign by energy companies and their allies in government to suppress these protests by increasing criminal penalties for minor violations and in some cases trying to use anti-terrorism laws against activists.

The ACLU says documents it obtained from state agencies in Montana suggest law enforcement agencies have begun extensive trainings in preparation for the Keystone XL project, and that federal agencies are involved.

Documents that have been released suggest federal and state agencies have created an interagency team and have been conducting trainings for local law enforcement on how to handle the protests. One email from an intelligence specialist in the U.S. Attorney’s Office in Montana to a state official said the office would be hosting an anti-terrorism training event in August.

A January email from David Loewen, head of the law enforcement division of Montana Fish, Wildlife and Parks, said the state’s Division of Criminal Investigations had been in touch with officials in North Dakota “to learn what worked and what didn’t” at Standing Rock during the Dakota Access Pipeline protests. The email noted that while “man-camps” to house workers would come along with pipeline construction and bring law enforcement challenges, “the primary enforcement focus is protest activity.”

In an interview, Loewen said the ACLU’s concerns about law enforcement agencies suppressing protests were “a bit silly.“

Our job is to prepare and train, that’s what law enforcement does all the time,” he said. “If we have a protest coming, chances are things are going to be peaceful and fine and dandy. But on the outside chance that they’re not, we want to be prepared.”

The Department of Justice did not respond to questions about the records or the anti-terrorism training.

Environmental and indigenous activists have describe harsh treatment by law enforcement and security officers in Louisiana, where at least 13 people have been arrested under a new law since it went into effect on Aug. 1, including four activists who were detained on Tuesday.  The law created a felony charge with up to five years in prison for anyone who trespasses on a pipeline easement.

The records obtained by the ACLU in Montana echo others in Oklahoma, Louisiana, Virginia and other states that have shown law enforcement agencies focusing anti-terrorism resources on environmental activists and, in some cases, cooperating with private security companies employed by pipeline companies to surveil and arrest protesters.

In a blog post announcing the organization’s lawsuit, Jacob Hutt of the ACLU said the organization hopes to determine from the documents its requested how and whether federal agencies are “thwarting, surveilling, and otherwise engaging with indigenous and environmental activists” opposed to Keystone XL.

“The First Amendment protects political speech from the threat of undue government scrutiny, and the extent of such scrutiny is currently unknown,” he wrote. “If the government is planning to prevent or monitor indigenous and environmental protests, the activists involved have a right to know about it.”

Summary

OMG! Law enforcers are actually preparing for an orderly construction of a vital energy infrastructure project and are not giving their plans to disrupters. Even more alarming, the states affected are passing laws with felony penalties for trespassing and vandalism.  Moreover, public and private agencies responsible for pipeline security are collaborating and coordinating their efforts in advance.

It all seems like an organized effort to build and operate a pipeline to provide reliable affordable energy to people who want and need it.  Taking note that some crackpots have declared war against fossil fuels, they are putting defenses in place.  I call that “Good Governance”

If Senators were not blinded by ideology, they would welcome the opportunity for an originalist Supreme Court to restore their congressional power, currently usurped by numerous executive branch agencies. Or maybe those opposed to Kavanaugh are happy to be derelict in their duties, feeling their progressive agenda has been well served by lawmakers’ acquiescence.  One estimate came to the number of 300,000 for criminal behaviors and penalties created by regulators and not by Congress.

Brett Kananaugh said yesterday in the first day of Q&A at his nomination hearing:  “I’m not a skeptic of regulation at all,” he said. “I am a skeptic of unauthorized regulation, of illegal regulation, of regulation that’s outside the bounds of what the laws passed by Congress have said.”

A ruling written by Justice Kavanaugh at DC Court of Appeals shows what that means for environmental law, and more specifically for climate activism.

A Majority Kavanaugh EPA Opinion

Last year DC Court of Appeals struck down EPA rules regarding HFCs and Judge Kavanaugh wrote the majority opinion:

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

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

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

More at Gamechanger: DC Appeals Court Denies EPA Climate Rules

Adam J. White wrote in Real Clear Policy July 31, 2018 Brett Kavanaugh’s Past Opinions Endorsed by Supreme Court  Excerpts below in italics with my bolds.

If all goes according to plan, Brett Kavanaugh will soon join the Supreme Court. But his ideas arrived at the Court well before him.

For 12 years, Judge Kavanaugh has served on the U.S. Court of Appeals for the D.C. Circuit, often considered the “second-highest court in the land” because of its heavy portion of constitutional and regulatory cases. On those issues, Kavanaugh has become the intellectual leader of his generation of judges on the lower courts. And the best evidence of this are those cases in which Judge Kavanaugh’s analysis was adopted by the Supreme Court even after Kavanaugh’s colleagues on the D.C. Circuit rejected it.

Through eloquent judicial opinions and nuanced law review articles, Kavanaugh has challenged, in particular, today’s increasingly unaccountable administrative state. His uncanny ability to identify fundamental threats to our Constitution’s republican institutions, and to anticipate the Supreme Court’s own eventual response, is exemplified by three cases.

The first involved so-called “independent” agencies. Since the New Deal, the Supreme Court has recognized Congress’s discretion to create agencies with a measure of insulation against day-to-day presidential control. But when Congress attempted to layer one independent agency within another — i.e., the Sarbanes-Oxley Act’s creation of the Public Company Accounting Oversight Board, inside the SEC — Kavanaugh recognized that a line must be drawn.

“By restricting the President’s authority over the Board,” he wrote in a 2008 case, “the Act renders this Executive Branch agency unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure.” Recognizing that “upholding the PCAOB here would green-light Congress to create a host of similar entities,” Kavanaugh dissented from his colleagues’ decision affirming the agency. The Supreme Court then reversed the D.C. Circuit, largely adopting Kavanaugh’s approach.

The second case involved an agency’s assertion of immense power in lieu of — or even contrary to — the laws enacted by Congress. When the Environmental Protection Agency imposed its initial suite of regulations for greenhouse gas emissions, the agency attempted to “tailor” the Clean Air Act to suit its climate policy. The EPA recognized that applying various parts of the Act to GHG emissions would lead to “absurd” results that Congress specifically sought to avoid when it created the Act in the first place. So the agency attempted simply to nullify those parts of the Act in order to maintain its climate policy.

As Kavanaugh explained in a dissenting opinion, the EPA was putting the regulatory cart before the legislative horse. If the EPA’s climate policy didn’t fit the Clean Air Act, then the EPA needed to change its policy, not the Act. Once again, Kavanaugh’s colleagues disagreed — and once again, the Supreme Court reversed the D.C. Circuit, largely adopting his approach in a 2014 case.

The third case involves judicial deference to an agency’s implausible and self-serving statutory interpretation. The Clean Air Act allows the EPA to impose certain air quality regulations when the agency concludes that such regulations are “appropriate.” When the EPA created new mercury restrictions for utilities, it refused to consider the enormous cost of those rules, claiming that such costs have no bearing on whether the rules are “appropriate.” Citing many scholars and judges, Kavanaugh concluded that it “is entirely unreasonable for EPA to exclude consideration of costs in determining whether” the regulation is “appropriate.” His colleagues rejected his approach and deferred instead to the agency. But in 2015 the Supreme Court reversed the D.C. Circuit and followed Kavanaugh.

In each of these cases, Kavanaugh sensed that the administrative state was pushing matters to a breaking point. Each time, his circuit colleagues rejected his approach, but the Supreme Court embraced it.

If Kavanaugh’s nomination succeeds and he winds up joining the Court, where his ideas already have had such influence, there are at least three places where he will likely have significant impact in reforming and modernizing the judicial doctrines surrounding the administrative state.

First, Kavanaugh has expressed reservations about the degree of “deference” that courts now give agencies’ legal interpretations. (The best example of this is his 2016 article in the Harvard Law Review.) This is an increasingly common theme among conservative judges — indeed, the justice whom Kavanaugh would replace (and for whom he once clerked), Justice Kennedy, raised the same concerns in one of his own last judicial opinions.

Second, and relatedly, Kavanaugh has been called on courts to be more skeptical of agencies’ assertions of power over the most significant economic and political issues of our times. In an opinion dissenting from the D.C. Circuit’s deference to the Obama FCC’s “net neutrality” rules, Kavanaugh argued that courts should presume that Congress did not commit such vast regulatory powers to bureaucratic agencies, absent a clear statement to the contrary. In this respect, Kavanaugh echoes Chief Justice Roberts’s own un-deferential opinion in one of the Affordable Care Act cases, where Roberts — joined by the Court’s four liberal justices — agreed with the Obama administration but expressly refused to approach the case with any interpretive “deference” to the agencies’ claims of authority.

Finally, Kavanaugh raises serious questions about novel forms of agency “independence.” In a case involving the Consumer Financial Protection Bureau, Kavanaugh wrote a majority opinion holding the CFPB’s structure unconstitutional. The reason? The Dodd-Frank Act gave the CFPB an unprecedented measure of independence without the usual multimember agency structure that disperses in independent agency’s power among more deliberative body (as in the Federal Trade Commission). Kavanaugh’s majority opinion — which echoed themes raised by Chief Justice Roberts in an earlier Supreme Court cases — was eventually vacated by the full D.C. Circuit, where Democratic appointees enjoy a strong majority. But even then, Kavanaugh’s intellectual influence among other judges was made evident when his approach to the CFPB case was adopted by the federal district court in Manhattan in a different challenge to the CFPB. Even more recently, the U.S. Court of Appeals for the Fifth Circuit applied a similar analysis to the Federal Housing Finance Agency, holding the FHFA’s structure unconstitutional with a judicial opinion replete with citations to Kavanaugh.

At the Scalia Law School, I direct the Center for the Study of the Administrative State. It is no exaggeration to say that for the past decade, to study the administrative state has been, in no small part, to study Judge Kavanaugh’s D.C. Circuit opinions. With an appointment to the Supreme Court, his official title will finally match his real-world influence.

Adam J. White is research fellow at the Hoover Institution, and director of the C. Boyden Gray Center for the Study of the Administrative State. Previously, as a lawyer, he participated in some of the mentioned cases.

Footnote:

More and more likely we are witnessing a return to Constitutional separation of powers.

Anti-fossil fuel activists and pipeline protesters are dismayed as the penalties for obstructing lawful commerce are getting serious in the case of energy infrastructure. The story of developments in several US states is reported in the pro-protester website truthout Under Louisiana Bill, Peaceful Protesters Could Face 20 Years in Prison Excerpts in italics with my bolds.

On April 12, 2018, in the chambers of the Louisiana State House of Representatives, Rep. Major Thibaut Jr. stepped up to the microphone before the Speaker to introduce seemingly benign House Bill 727. According to his testimony, the bill was humble — almost technical — in scope and aimed primarily to add “pipelines” to the list of what the state considers “critical infrastructure.” It had faced no opposition in committee, Thibaut added, and had “over sixty-something authors.”

“It’s a good bill,” he said, then motioned for favorable passage. Ninety-seven legislators voted yay, three voted nay, and just like that, all 4.6 million residents of Louisiana took a step toward losing their First Amendment rights. Should the bill become law, it would impose severe penalties on peaceful protesters engaged in nonviolent civil disobedience actions at sites considered “critical infrastructure” by Thibaut’s bill. In fact, simply planning to take such an action, considered “conspiracy” by HB 727, could be punishable by fees of up to $10,000 and prison sentences as long as 20 years.

With the crack of a gavel, Louisiana joined the growing number of states across the nation with similar “critical infrastructure” bills moving swiftly through the courts and onto governors’ desks.

The first appeared in Oklahoma in May 2017. According to the bill’s author, Rep. Mark McBride, it was an attempt to keep Oklahoma from paying costs related to any Diamond Pipeline protests. The law beefed up penalties for protesters who trespassed on property containing a “critical infrastructure facility.” The definition of such facilities varies by state but tends to include energy-industry sites like pipelines, refineries and electrical power facilities.

Shortly after Oklahoma signed the bill into law, the American Legislative Exchange Council (ALEC), a corporate-funded group that holds annual meetings with state legislators and lobbyists to vote on “model” legislation, took the measure up itself at its summit in Nashville, Tennessee, in December 2017. ALEC calls its model bill “The Critical Infrastructure Protection Act,” claiming the bill drew its “inspiration” from laws enacted in 2017 by the State of Oklahoma.

Since the ALEC Summit, bills like Louisiana’s HB 727 have cropped up all over the country. In Ohio, where construction on the Rover pipeline resulted in repeated spills of toxic drilling material, Senate Bill 250 suddenly appeared. Its language reflects the ALEC-inspired bill, aiming to “prohibit criminal mischief … on a critical infrastructure facility.” It would also impose fines on organizations “complicit” with said activity.

In Iowa, Senate Study Bill 3062 penalizes those who’d commit “sabotage” of critical infrastructure facilities with fines of up to $100,000 and 25 years in jail.

In March 2018, lawmakers in Minnesota introduced HF 3693, which would, among other things, criminalize anyone who “recruits, trains, aids, advises, hires, counsels, or conspires with” a trespasser at an infrastructure site. Minnesota courts could use the law to punish these “conspirator” groups or individuals with a full year in jail and/or a $3,000 fine.

Louisiana House Bill 727, introduced in late March, is even more severe than the original ALEC-inspired legislation. If enacted, the law could potentially penalize people who never even set foot on one of its protected sites. Under the bill as written, simply discussing a possible trespass action could result in prison sentences of five years and fines up to $10,000. Actually damaging pipeline infrastructure could lead to 15 years in jail, and it could lead to 20 years if the damage interrupts construction site operations or endangers human life.

It remains unclear how the conspiracy clause of this bill would be enforced in Louisiana, should the measure become law. In a phone interview with Truthout, Alicia Cooke of the volunteer climate activist group 350 New Orleans wondered aloud, “How do you prove that someone is conspiring to trespass on property? Versus conspiring to gather near property?”

Now that the Louisiana bill has passed through the House, it will travel to the Senate for debate. Meanwhile, in Ohio, Iowa and Minnesota, state lawmakers are pushing their versions of the ALEC-inspired bill through committees and legislative chambers.

Protester Alicia Cooke is arrested at a Bayou Bridge Pipeline construction site in St. James Parish on Thursday, May 24. (Louisiana Bucket Brigade)

“It’s the ultimate irony,” said Cooke. “We’re considering critical infrastructure to be pipelines, oil refineries, and oil wells. But we’re not considering our own water, our own forests, our own wetlands to be critical infrastructure.”

Cooke, who continues to organize with 350 New Orleans against the bill, said she felt sad about it all, adding, “It just shows what we’ve chosen to prioritize in Louisiana.”

Rolfes, however, sees reason for hope. “Resistance to fossil fuels in general and oil specifically is growing,” she said. “Although it’s disheartening to see these bills, it shows you the status of their industry. Their future is on shaky footing.”

August 22, 2018  First Felony Arrests Near Bayou Bridge Construction Made Under New Louisiana Law Penalizing Pipeline Trespass  Source: DeSmogBlog

Comment

Protesters intend to stop fossil fuel usage because of their belief in global warming/climate change.  Acts of civil disobedience are by definition legal transgressions and incur penalties.  Energy infrastructure is essential to our civilized society, and everyone is at risk if supply of fuels and power are restricted or blocked.

The problem here is people disrupting others’ lives due to their fears of the future (unfounded IMO). There are rules  and places for legal protests to attempt to convince others of your concerns.  The First Amendment does not permit trespassing on property where access is prohibited, and penalties are appropriate since the possibility of vandalism is involved. States are wise to prepare against eco-terrorism until CO2 hysteria loses its grip on impassioned believers.

See also: Upping the Stakes for Ecoterrorists

Now this is interesting. This week another children’s climate lawsuit has been dismissed, this time in Seattle Washington, hotbed of climatists as rabid as California. According to AP, Judge Michael Scott gave away his personal bias by telling the plaintiffs not to be discouraged by his ruling granting the motion to dismiss from defendant Governor Inslee. Methinks that leftward justices in the lower courts are realizing they can no longer make policy from the bench and expect higher courts to let it pass. With Gorsuch sitting on the highest court, and Kavanaugh soon to be added, liberal grandstanding opinions may become much rarer.

The story from Washington Examiner Washington judge throws out children’s climate change lawsuit Excerpts in italics with my bolds.

A judge in Washington state on Tuesday dismissed a climate change lawsuit filed against the state by a group of child activists.

King County Superior Court Judge Michael Scott ruled in favor of the State of Washington’s motion to dismiss the lawsuit, Aji P. v. State of Washington. The 13 young activists in the suit argue that the state is violating their constitutional rights through actions that cause climate change.

Judge Scott ruled that issues brought up in the case are political questions that cannot be resolved by a court, and must be addressed by Congress and the president.

Attorneys representing the children said they would make a formal statement on the judge’s decision on Wednesday morning. An initial statement by Our Children’s Trust, the group representing the children, suggested Judge Scott erred in his decision.

“Given the significance of the Court’s decision and the pronounced departures from proper judicial procedure and consideration of Plaintiffs’ claims, Our Children’s Trust will issue a formal statement regarding the decision tomorrow,” the initial statement read.

The child plaintiffs in the lawsuit said they were both “saddened” and heartbroken” by the judge’s decision.

The same group of child activists has also sued the federal government on the same constitutional grounds in Juliana v. United States. But that lawsuit has had better luck in federal appeals court, which rejected the Trump administration’s several attempts to have the case thrown out.

More recently, the Supreme Court rejected a last-ditch attempt by the Trump administration to block the climate change lawsuit filed by children, meaning the lawsuit will have its day in court later this fall.

“The Government’s request for relief is premature and is denied without prejudice,” read the high court’s decision.

The case will be heard in federal district court in October.

Note: The article omits the caution directed by the supremes in their decision not to intervene.  The brief unsigned order said the Trump administration’s request was premature. The court did, however, note that the claims made in the ambitious lawsuit are “striking” and the question of whether they can be considered by a jury “presents substantial grounds for difference of opinion.”  As such, the lower court should take those concerns into account in handling the case, the order said.

“Without prejudice” suggests the highest court is open to hearing the case should the lower court get it wrong.

Footnote: The Fable of Political Success

A provincial political leader won the parliamentary election and on the day to take the oath was greeted by the outgoing premier.  Wishing him well, his predecessor gave him three envelopes, explaining it was a tradition.  The envelopes contained advice to be consulted later on if difficulties were encountered.

Not long after taking office, criticisms started up, and the new premier opened the first envelope.  It explained:  “Blame it on the previous administration.”  He followed that advice pointing to past financial mismanagement, and the difficulty undoing bad policies and programs he had inherited.

That calmed things down for awhile, but a year later the excuses were wearing thin.  So he turned to the second envelope which gave the advice:  “Blame it on the federal government.”  A new campaign of announcements focused on delays and shortfalls of federal funding, poor coordination and liaison by federal counterparts, and counterproductive federal policies.

This quieted critics for more than a year, but alas it too began to fall on deaf ears.  It was time to open the third envelope:  ” Blame it on climate change, or else prepare three envelopes.”

ITV reports Environmental campaigners lose High Court battle over carbon target. Excerpts in italics below with my bolds.

Environmental campaigners have lost their High Court challenge against the Government over its policy for tackling climate change.

Charity Plan B Earth brought legal action against the Government’s stance on the 2050 carbon target, set under the Climate Change Act 2008.

The charity and 11 UK citizens aged nine to 79 – including publisher Dame Carmen Callil – wanted to bring a judicial review against Business Secretary Greg Clark over the policy.

But Mr Justice Supperstone rejected Plan B Earth’s case on Friday, saying it was “unarguable”.

Lawyers for the charity previously argued the Government should have, in light of the current scientific consensus, gone further than its original target of reducing carbon levels by 2050 to 80% of those present in 1990.

They said the decision not to amend the 2050 target put the UK in breach of its international obligations under the Paris Agreement on Climate Change and was influenced by the Government’s belief that a “more ambitious target was not feasible”.

At a hearing on July 4, Jonathan Crow QC told the court: “The Secretary of State’s belief that he needs to have regard to what is feasible, rather than what is necessary, betrays a fundamental misunderstanding of the scheme of the 2008 Act and must be quashed.

“All of the individual claimants are deeply concerned about climate change.”

The barrister argued the Secretary of State’s “continuing refusal” to amend the 2050 target means the UK is playing “Russian roulette with two bullets, instead of one”.

But, refusing permission for a full hearing, Mr Justice Supperstone said Plan B Earth’s arguments were based on an “incorrect interpretation” of the Paris Agreement.

He said: “In my view the Secretary of State was plainly entitled … to refuse to change the 2050 target at the present time.

“I do not consider it arguable that the Secretary of State’s refusal to amend the 2050 target is an unlawful exercise of his discretion.”

Plan B Earth director Tim Crosland said the charity was “surprised and disappointed” by the ruling and plans to appeal.

He said: “We consider it clear and widely accepted that the current carbon target is not compatible with the Paris Agreement.

“Neither the Government nor the Committee on Climate Change suggested during our correspondence with them prior to the claim that the target was compatible.

“Indeed, it was only in January of this year that the Committee published a report accepting that the Paris Agreement was ‘likely to require’ a more ambitious 2050 target.

“Moreover the Government acknowledged in these proceedings that it was uncontroversial’ that the 2050 target was insufficient to meet the 1.5C target, one of the key aspects of the Paris commitment.

“As with other legal campaigns confronting powerful vested interests it takes time to break through, and time is not on our side.

“We’ll be doing everything possible to accelerate the process. Wildfires raging in the Arctic Circle must surely be a wake-up call.”

Regarding wildfires in the Arctic, I recommend he read my post Arctic Hockey Stick Extends Lead

Washington Examiner has the story: Federal judge dismisses New York City’s climate change lawsuit against Big Oil Excerpts below in italics with my bolds.

A federal judge Thursday dismissed New York City’s lawsuit against major oil companies for their contribution to climate change, the latest in a string of suits filed by cities to be tossed aside.

“Global warming and solutions thereto must be addressed by the two other branches of government,” U.S. District Court Judge John Keenan ruled in dismissing the city’s climate lawsuit, saying the matter should not be handled by the courts. He added that Congress has already delegated to the Environmental Protection Agency the authority to regulate greenhouse gas emissions, so it’s not the job of the courts.

Keenan, of the U.S. District Court for the Southern District of New York, is an appointee of former President Ronald Reagan, a Republican.

In January, New York City sued Exxon Mobil, Chevron Corp., BP, Shell, and ConocoPhillips to help pay for the costs of climate change, trying to hold them responsible for any damage to the city caused by global warming.

Just last week, U.S. District Court Judge William Alsup dismissed similar lawsuits filed by the cities of San Francisco and Oakland, stating in an order: “No plaintiff has ever succeeded in bringing a nuisance claim based on global warming.”

Alsup, of the U.S. District Court for the Northern District of California, is an appointee of former President Bill Clinton, a Democrat.

The cities have argued that big oil companies have promoted fossil fuel use and deliberately concealed that they knew climate change could harm coastal cities, meaning they should have to pay for seawalls and other infrastructure to protect against rising sea levels.

Oil companies say that courts cannot rule on broad and speculative issues such as the impact of business decisions on climate change.

Despite the setbacks, environmentalists continue to increase the pressure for similar lawsuits, seeing them as a key tactic to publicly criticize the industry for its role in producing energy that exacerbates climate change.

Earlier this month, Rhode Island became the first state to file such a lawsuit. Rhode Island Attorney General Peter F. Kilmartin filed the lawsuit in state court against 21 companies that included Exxon Mobil, Chevron, and BP.

JOHN F. KEENAN, United States District Judge Ruling July 19, 2018 Excerpts below in italics with my bolds give the flavor of the judge’s thinking.

Although the amended complaint contains extensive allegations regarding Defendants’ past attempts to deny or downplay the effects of fossil fuel use on climate change, in their motion to dismiss, Defendants do not dispute the scientific consensus that greenhouse gas emissions from fossil fuel use have contributed to global warming.

The City alleges that Defendants’ ongoing conduct continues to exacerbate global warming and cause recurring injuries to NewYork City. (Id. ¶ 9.) Defendants continue to produce, market, distribute, and sell fossil fuels in massive quantities; to promote fossil fuel consumption in these massive quantities; and to downplay the threat posed by climate change. (Id. ¶ 131.) This ongoing conduct will cause increasingly severe injuries to New York City, including new and more significant encroachments upon and interferences with City property, and increasingly severe threats to public health.

NYC claims of damages rest upon IPCC models projections of sea level rise 8 times beyond what has been observed.

The City requests compensatory damages for past and future costs incurred by the City to protect its infrastructure and property, and to protect the public health, safety, and property of its residents from the impacts of climate change.

However, regardless of the manner in which the City frames its claims in its opposition brief, the amended complaint makes clear that the City is seeking damages for global-warming related injuries resulting from greenhouse gas emissions, and not only the production of Defendants’ fossil fuels.

From BP Brief: If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making (and studying) with causes ranging from volcanoes, to wildfires, to deforestation to stimulation of other greenhouse gases—and, most pertinent here, to the combustion of fossil fuels.

As an initial matter, it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an “unlawful invasion” in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades. More importantly, Congress has expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.

The Court recognizes that the City, and many other governmental entities around the United States and in other nations, will be forced to grapple with the harmful impacts of climate change in the coming decades. However, the immense and complicated problem of global warming requires a comprehensive solution that weighs the global benefits of fossil fuel use with the gravity of the impending harms. To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S.Government. Accordingly, the Court will exercise appropriate caution and decline to recognize such a cause of action.

CONCLUSION
For the reasons stated above, the U.S.-based Defendants’ motion to dismiss is GRANTED and the City’s amended complaint is dismissed with prejudice in its entirety.

Note:  With prejudice indicates NYC cannot file an amended complaint again in this court.  They can appeal to a higher court, but that seems unlikely.  OTOH should one federal district court cave in to climate plaintiffs, then an appeal by the oil companies is highly likely.

CBC reports on the trials in BC: First of 202 Trans Mountain pipeline protesters await sentencing Excerpts in italics with my bolds.

Nine pipeline protesters found guilty June 18, 2018 of criminal contempt by a judge in B.C. Supreme Court are facing fines of up to $3,000 or 150 hours of community service. Fines stemming from later arrests will escalate from $500 to $5,000 as trials progress this summer.

The protesters were among the first arrested on Burnaby mountain on March 17. They will be sentenced on June 28.

Earlier this month, more than a dozen protesters arrested on the same day pleaded guilty. They were fined $500 or 25 hours of community service, because they pleaded guilty before the case went to trial.

The expected sentences are based on recommendations put forward by the B.C. Prosecution Service in May, but it will be up to the judge to actually decide the sentences.

Those recommendation include a series of escalating fines and jail time based on when protesters were arrested and how they pleaded to the charges of criminal contempt.

Trials to run all summer

The trial, which wrapped up Monday, is the first in a series of trials scheduled to run over the summer and into the fall. A second trial of four more protesters was expected to get underway Monday afternoon.

In all, about 202 protesters were arrested at Kinder Morgan’s worksite on Burnaby mountain. Those who were arrested after May 8 are facing fines of up to $5,000 or 14 days in jail.

Legal support co-ordinator Kris Hermes says no protesters have been arrested since the Crown raised the sentencing recommendation to seven days in jail for anyone arrested after May 28 even if they plead guilty before trial.

“The Crown is clearly escalating its attack on anyone protesting at the site and it has had an effect of eliminating protests outside the Kinder Morgan worksite,” said Hermes.

About half a dozen protesters are also facing Criminal Code charges of assault, mischief and obstruction of a police officer, said Hermes.

A report in the National Observer gives more details on the proceedings Judge hands down decision in first anti-pipeline protester trial  By Dylan Waisman in News, Energy, Politics | June 18th 2018

Nine anti-pipeline protesters who were trying to blockade the Kinder Morgan tank farm on Burnaby Mountain will be sentenced on June 28 after a B.C. Supreme Court judge found that they were all guilty of criminal contempt of court for violating an injunction on March 17.

Justice Kenneth Afflect said on June 18, 2018 that the BC Prosecution Service proved beyond a reasonable doubt that “the accused disobeyed a court order in a public way, with intent, knowledge or recklessness that the act will tend to depreciate the authority of the court.” He also said he was satisfied that the protesters “openly, flagrantly, and continuously” acted in a way that undermined the court’s authority.

The verdicts follow a week of testimony and cross-examination for the defendants who opted to stand trial, unlike 70 others, among more than 200 people arrested, who opted to plead guilty to avoid a hearing. Federal MPs Elizabeth May and Kennedy Stewart were among the 70 who pleaded guilty and were sentenced to pay fines for violating the injunction.

Many of those who pleaded guilty were persuaded by the court’s practice of awarding lower fines for earlier pleadings. Penalties for early guilty pleas have been as low as $500, with fines for unsuccessful trials as high as $5000, with the option of a corresponding amount of community service hours (ranging 25-240 hours) as an alternative. The court reasons that early guilty pleas take up less court time and resources, and therefore warrant lower fines.

The Crown presented video evidence for each defendant as well as testimony from RCMP and Kinder Morgan security agents. By contrast, self-representing defendants employed both humour, and ethical and environmental considerations to argue their cases, while using friends and each other as witnesses.

Some also chose to put forward largely unconventional legal arguments, cross-examining each other, and telling personal anecdotes in an attempt to sway the court.

Kat Roivas, a defendant who is also on trial for breaking the injunction on two other occasions, advanced several arguments to prove her innocence. Roivas said she had no prior knowledge of the injunction, and explained that due to dyslexia, she was not able to read it when RCMP handed copies out, nor was she able to hear it being read, due to the loud singing and drumming of the other protesters.

Roivas also told the court that she was stationed in front of the gate for spiritual reasons, to support other arrestees.

While she was on the stand during the trial, Monte Ruttan of the Crown Prosecution, was skeptical, referencing RCMP footage and asking “when I see you in the video I don’t see you outwardly doing that [prayer].”

This provoked some laughter from the gallery.

Errol Pova, a friend of Roivas and fellow defendant, cross-examined her afterwards, in an attempt to use humour to “lighten things up,” he told National Observer. He questioned her about an eagle that was in the sky that day, and asked her to provide proof. The stunt was short, but was also met by more laughter in the courtroom.

Affleck ultimately rejected the defence offered by Roivas, agreeing with Ruttan’s arguments that the law does not protect someone who chooses “to remain willfully blind and willfully ignorant” of a court order, despite knowing of its existence.

Chantler also argued that RCMP arrived at the Burnaby terminal already “expecting, and prepared to make arrests.” He added that RCMP had one to two days’ notice of a planned protest in which people would be intending to be arrested, and the RCMP “seemed to accept Trans Mountain’s conclusion that the injunction was being breached, without putting his mind to it,” referencing an affidavit from a RCMP chief constable, Andrew McCauley.

Justice Affleck was not persuaded by either argument, saying that “a higher standard of proof is not required.” He said it was enough that Contable McCauley “had a subjective believe that people were breaking the injunction, I conclude that that belief was objectively justified.”

Following the verdicts, Errol Pova, one of the defendants in the trial, stood up to address Justice Affleck.

“To say that I am disappointed is a major major understatement.”

Affleck replied, “You’re not the first person to be disappointed in the outcome of a trial.”

US District Court grants Chevron’s motion to dismiss climate change case

World Pipelines, Tuesday, 26 June 2018 12:00

The US District Court for the Northern District of California has issued a ruling dismissing the climate change lawsuits filed against Chevron Corporation by the cities of San Francisco and Oakland. The court dismissed the complaint as requiring foreign and domestic policy decisions that are outside the proper purview of the courts.

As the court described, “the scope of plaintiffs’ theory is breathtaking. It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.”

“It is true,” the court continued, “that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming. But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fuelled by oil and coal. Without these fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?”

The court concluded by dismissing the claims and deferring to the policy judgments of the legislative and executive branches of the federal government: “The dangers raised in the complaints are very real. But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches.”

“Reliable, affordable energy is not a public nuisance but a public necessity,” said R. Hewitt Pate, Chevron’s Vice President and General Counsel. “Tackling the difficult international policy issues of climate change requires honest and constructive discussion. Using lawsuits to vilify the men and women who provide the energy we all need is neither honest nor constructive.”

The court’s decision dismisses a lawsuit that the cities of San Francisco and Oakland filed against BP, Chevron, Conoco-Phillips, ExxonMobil and Royal Dutch Shell, seeking to hold a selected group of oil and gas companies responsible for the potential effects of global climate change. The suit, filed in 2017, claims that the production and sale of oil and gas are a public nuisance because they result in greenhouse gas emissions that contribute to worldwide climate change and rising sea levels. The US Supreme Court and other courts around the country have previously rejected similar claims brought by the same lawyers. Those courts – like the court today – found that America’s environmental policies must be determined by national policymakers like the Environmental Protection Agency, not courts of law.

Several other US cities and counties, including New York City and King County, Washington, recently filed nearly identical cases against the same oil and gas companies. Many were filed by the same lawyers. The energy companies have filed motions to dismiss those cases as well. As Chevron has repeatedly emphasised in its court filings, Chevron supports meaningful efforts to address climate change and accepts internationally recognised climate science, but climate change is a global issue that requires global engagement, not lawsuits. Chevron is taking prudent, practical and cost-effective actions to mitigate potential climate change risks, including managing emissions, testing new technologies, and increasing efficiency.

Chevron Corporation is one of the world’s leading integrated energy companies. Through its subsidiaries that conduct business worldwide, the company is involved in virtually every facet of the energy industry. Chevron explores for, produces and transports crude oil and natural gas; refines, markets and distributes transportation fuels and lubricants; manufactures and sells petrochemicals and additives; generates power; and develops and deploys technologies that enhance business value in every aspect of the company’s operations. Chevron is based in San Ramon, California.

Judge Alsup’s Ruling

Footnote:  It will be claimed that the court has confirmed dangerous man made warming.  But IPCC science was stipulated by both plaintiffs and defendants, so there was no disagreement for the court to resolve.  The science was not at issue between the parties.  It doesn’t mean the science holds up under scrutiny, only that such examination was not pertinent here.

OK my headline is not the report from activists who are crowing because the judge asked for more discovery during the next sixty days. A closer look reveals both sides will have that burden.  A more balanced report comes from Kurtis Alexander in the SF Chronicle

Oil companies want SF, Oakland climate lawsuits dismissed  Excerpts with my bolds.

Five of the world’s largest oil producers urged a federal judge Thursday to dismiss lawsuits by San Francisco and Oakland that seek to hold the companies liable for climate change, arguing that the issue is one for Congress, not the courts.

San Francisco and Oakland are among a handful of communities nationwide, including New York City and King County, Wash., squaring off over global warming with the fossil fuel industry, and now the Trump administration. An attorney for the Department of Justice stood with industry lawyers in the federal courthouse in San Francisco, echoing their request that the cases be dropped.

The communities accuse the oil industry of knowingly selling products that emit damaging heat-trapping gases, and they’re suing for billions of dollars to address such problems as sea-level rise. The companies counter that greenhouse gas emissions are regulated under the Clean Air Act and remain the purview of lawmakers.

“Global warming is a serious issue, but it’s not one that can be solved by a lawsuit,” said attorney Ted Boutrous, who represents Chevron of San Ramon and also represented ExxonMobil, BP, Shell and ConocoPhillips on Thursday. “The plaintiffs are asking the courts to wade into the clear territory of Congress. To say the least, that’s a big ask.”

Boutrous not only argued that the nation’s environmental laws are the proper way to deal with industrial emissions, but also said that if a judge takes up the matter of fossil fuels, the court would be reaching too far into issues of national energy policy and national security, topics best handled by Washington.

After nearly three hours of arguments, U.S. District Judge William Alsup did not rule on whether the lawsuits would move forward. He asked both sides for more information. In addition, he authorized the cities to collect information from the out-of-state oil companies, which also argued that liability for California issues shouldn’t extend beyond the state’s border.

The San Francisco and Oakland cases are the furthest along of roughly a dozen similar legal efforts and they’re being closely watched across the nation. The suits have put global warming on unprecedented legal ground and have huge stakes for how the localities will cover the rising costs of climate change.

San Francisco alone estimates that $10 billion of public property and as much as $39 billion of private land are threatened by rising seas. The city wants money to repair its seawalls, control drainage, and relocate streets and infrastructure.

“It’s hard to know what’s going to happen with the suits,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. “We have not had a case like this that has gotten beyond the motion-to-dismiss phase.”

The attorneys for the oil companies sought to justify their pleas for dismissal with prior court cases. Many of the rulings they cited, including the 2011 decision in American Electric Power Co. vs. Connecticut, found that corporations can’t be sued for greenhouse gas emissions because Congress has laws, as well as the Environmental Protection Agency, to regulate pollutants.

San Francisco and Oakland, however, are making a slightly different legal case than the earlier suits. They’re going after the oil companies not for greenhouse gas emissions but for producing and promoting fossil fuels.

Attorneys for the cities said that putting fossil fuels on the market and encouraging their use, when the companies knew they were damaging, constitutes a “public nuisance” that is within the court’s jurisdiction.

“We’re going to prove that they understood that they were causing global warming and they took actions to harm us,” said Steve Berman, one of the attorneys representing the cities.

The cities have likened the actions of the oil industry to tobacco companies, which sought to cover up research into lung cancer and have been held responsible for the health damage caused by smoking.

While Alsup hasn’t ruled on whether the cases will proceed, he acknowledged in a March decision, which put the matter in federal court instead of state court, that the suits are different than previous emissions cases. He also held an unprecedented “tutorial” on climate science to better prepare the court for handling the cases.

But on Thursday, Alsup questioned whether it makes sense to sue the oil industry for a product most people want and need.

“If we didn’t have fossil fuels, we would have lost that war (World War II) and every other war,” he told the courtroom. “Planes wouldn’t fly. Trains wouldn’t run. And we’d be back in the Stone Age.”

Alsup wrestled aloud with how to reconcile the benefits of fossil fuels with the damage they’re causing, and he wants both sides to provide additional information on the matter.

In a friend-of-the-court brief filed this month, the Justice Department argued that the importance of oil and gas is one of the reasons the issue is not one for the courts to address.

“Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government,” the federal attorneys wrote.

The attorneys also argued that if San Francisco and Oakland are successful in their suits, it would invite countless other legal challenges.

“If these cities may properly allege injuries from climate change, then so can every person on the planet,” they wrote. “Federal courts are poorly equipped to handle this multitude of cases and the associated complex scientific, economic, and technical issues.”

Most of the communities that have filed suits like San Francisco’s and Oakland’s are in California, including the cities of Richmond, Santa Cruz and Imperial Beach, and the counties of San Mateo, Marin and Santa Cruz. None have moved to trial. In most of the cases, judges are still deciding whether federal or state court is the appropriate venue.

The lawsuits come as the Trump administration has vowed to withdraw from the Paris climate agreement, an international pact aimed at reducing greenhouse gas emissions. President Trump has often downplayed the threat of climate change, even suggesting that the planet is not warming.