Climate Litigation

Beware Claims Attributing Extreme Events to Hydrocarbons

RIP. You did good science and for that we are grateful.

Roger Pielke Jr. alerts us to a dangerous development in the IPCC effort claiming loss and damage from using hydrocarbons. His blog article is A Takeover of the IPCC.

The IPCC’s longstanding framework for detection and attribution looks DOA in AR7

Pielke: The Intergovernmental Panel on Climate Change (IPCC) has just released the names of its authors for its seventh assessment report (AR7). The author list for its Chapter 3 — Changes in regional climate and extremes, and their causes — suggests strongly that the IPCC will be shifting from its longstanding focus on detection and attribution (D&A) of extreme events to a focus on “extreme event attribution” (EEA).

The IPCC AR6 was decidedly lukewarm to freezing cold on the notion of EEA, and emphasized the traditional D&A framework. Those days may now be over. World Weather Attribution (WWA) co-founder Frederika Otto has been put in charge of the chapter, along with another academic who focuses on extreme event attribution.

Pielke has a series of articles taking exception to EEA methods and claims. This post is a synopsis of work by Patrick Brown on the same issue, which is likely to be featured by climatists in the days and months ahead.

How Climate Attribution Studies Become Devious and Untrustworthy

Patrick Brown raises the question Do Climate Attribution Studies Tell the Full Story? Excerpts in italics with my bolds and added images, his analysis concluding thusly:

How a cascade of selection effects bias
the collective output of extreme event attribution studies.

Weather and climate extremes—such as high temperatures, floods, droughts, tropical cyclones, extratropical cyclones, and severe thunderstorms—have always threatened both human and natural systems. Given their significant impacts, there is considerable interest in how human-caused climate change influences these extremes. This is the focus of the relatively new discipline of Extreme Event Attribution (EEA).

Over the past couple of decades, there has been an explosion in EEA studies focusing on (or, “triggered by”) some prior notable weather or climate extreme. Non-peer-reviewed reports from World Weather Attribution (e.g., here, here, and here) represent some of the most notable examples of these kinds of analyses, and many similar studies also populate the peer-reviewed literature. The Bulletin of the American Meteorological Society’s “Explaining Extreme Events From a Climate Perspective” annual series compiles such studies, as does the Sabin Center for Climate Change Law, and they are also synthesized in reports like those from the IPCC (IPCC WG1 AR6 Chapter 11.2.3) and the United States National Climate Assessment.

The collective output of these kinds of studies certainly gives the impression that human-caused climate change is drastically changing the frequency and intensity of all kinds of weather extremes. Indeed, Carbon Brief recently published an extensive summary of the science of EEA studies, which begins with the proclamation, “As global temperatures rise, extreme weather events are becoming more intense and more frequent all around the world.”

However, these numbers cannot be taken as an accurate quantification of the influence of climate change on extreme weather because they are heavily influenced by a cascade of selection biases originating from the physical climate system, as well as researcher and media incentives. Identifying and understanding these biases is a prerequisite for properly interpreting the collective output of EEA studies and, thus, what implications they hold for general scientific understanding, as well as political and legal questions.

The large apparent discrepancy between the size of the influence of human-caused climate change on extreme weather reported in EEA studies (like those compiled by Carbon Brief) compared to more comprehensive systematic analyses (like those compiled by the IPCC) can, in large part, be attributed to the many layers of Selection Biases that influence the EEA literature’s collective output.

Selection Bias is a broad term that refers to any bias that arises from a process that selects data for analysis in a way that fails to ensure that data is representative of the broader population that the study wishes to describe.

Selection biases in the context of EEA studies include those associated with the physical climate system itself, those concerning proclivities and incentives facing researchers/journals, and those concerning the proclivities and incentives facing the media. They include

Occurrence Bias is a bias introduced by the physical climate system. Since EEA studies tend to be triggered by extreme events that have actually occurred, there is reason to believe that these studies will disproportionately sample events that are more likely than average to be exacerbated by climate change because the events occurred in the first place. Essentially, extreme events that are more likely to occur under climate change—and thus more likely to be observed—are going to be overrepresented in EEA studies, and extreme events that are less likely to occur under climate change—and thus less likely to be observed—are going to be underrepresented in EEA studies.

The map below illustrates this phenomenon. It shows changes in the magnitude of extreme drought under climate change. Specifically, it shows the fractional change in the intensity of once-per-50-year droughts (as quantified by monthly soil moisture) between a preindustrial and 21st-century run (SSP2-4.5 emissions) of the highly-regarded NCAR CESM2 Climate Model. Blue areas represent locations where the model simulates that extreme droughts become less frequent and intense with enhanced greenhouse gas concentrations, and red areas represent locations where the model simulates that extreme droughts become more frequent and intense with enhanced greenhouse gas concentrations. It is notable that overall, this model simulates that warmingdecreases the frequency and intensity of extreme drought in more locations than it increases it (consistent with soil moistening under warming simulated by other models).

Now, here’s the kicker: The black dots show locations where once-per-50-year droughts actually occurred in the 21st-century simulation and thus represent events that would plausibly trigger EEA studies.

What do you notice about where the dots are compared to where the red is? That’s right; the simulated EEA studies overwhelmingly sample areas where droughts are getting more intense and more frequent by the very nature that those are the types of droughts that are more likely to occur in the warming climate. The result is that the EEA sample is majorly biased: warming decreased the intensity of once-per-50-year droughts by about 1% overall, but it increased their intensity within the EEA sample by 18%!

Thus, if you just relied on the EEA sample, you would come away with an
incorrect impression not only on the magnitude of change in extreme droughts
but also on the sign of the direction of change!

Choice Bias arises when researchers use prior knowledge to choose events for EEA studies that are more likely to have been made more severe by climate change. A clear example of Choice Bias pervading the Carbon Brief database is there have been 3.6 times more studies on extreme heat than there have been on extreme winter weather (205 vs. 57). Another example would be the dearth of EEA studies on extratropical cyclones (the kinds of low-pressure systems with cold and warm fronts that are responsible for most of the dramatic weather outside of the tropics). The IPCC states that the number of extratropical cyclones associated with intense surface wind speeds is expected to decrease strongly in the Northern Hemisphere with warming. Yet, it is relatively rare for EEA attribution studies to be done on these types of systems, which results in an exclusion of this good news from the EEA literature.

Publication Bias could be playing a role, too, where researchers are more likely to submit, and journals are likely to publish studies that report significant effects on salient events compared to studies that find null effects.

From Clark et al., 2023

Finally, the climate reporting media ecosystem is characterized by actors whose explicit mission is to raise awareness of the negative impacts of climate change, and thus, there will be a natural Media Coverage Bias with a tendency to selectively highlight EEA studies where climate change is found to be a larger driver than EEA studies that do not reach such a conclusion. These selection biases are apparent at the aggregate level, but there is also strong evidence of their presence in individual studies.

A more recent specific example suggestive of many of these dynamics is a study, Gilford et al. (2024), titled “Human-caused ocean warming has intensified recent hurricanes”. This study was conducted by three researchers at Climate Central, which summarizes the study’s findings with the following infographic:

From Climate Central press release on Gilford et al. (2024).

Essentially, they claim that climate change is enhancing the intensity of all hurricanes and that the enhancement is quite large: Storms today are calculated to be an entire Category stronger than they would have been in a preindustrial climate.

This is a huge effect, and thus, if it were real, it is reasonable to expect to see clear long-term trends in metrics of tropical cyclone (hurricane) intensity like the accumulated number of major (Category 3+) hurricane days or the accumulated cyclone energy from all tropical cyclones (which is proportional to the square of hurricane windspeed accumulated over their lifetimes). However, any long-term trends in such metrics are subtle at best, both globally and over the North Atlantic.

From Colorado State University Department of Atmospheric Science Tropical Meteorology Project.

So, this is a microcosm of the aforementioned apparent discrepancy between more broad quantifications of changes in extremes and their associated EEA counterparts, and again, I’d argue there are several selection biases at play affecting the production and dissemination of the EEA study.

Let’s start with Choice Bias on methodology. Human-caused warming changes the environment in some ways that work to enhance hurricanes and in other ways that diminish them. The main way that hurricanes are enhanced is via the increase in sea surface temperatures (which provides the fundamental fuel for hurricanes), and the main way that hurricanes are diminished is via changes in atmospheric wind shear and humidity.

The net result of these countervailing factors pulling in opposite directions is that we expect fewer hurricanes overall, but when hurricanes are able to form, they can be stronger than they would otherwise. These factors, though, are small relative to natural random variability, and thus, they are difficult to detect in observations.

However, the Climate Central researchers made the methodological choice
to largely exclude the influence of factors that diminish
hurricane development from the study.

Are these Choice Biases in event type and methodology an accident? There are many reasons to believe they are not.

The research paper itself spells out that the motivation of the study is to “connect the dots” between climate change and hurricanes because “landfalling hurricanes with high intensities—can act as ‘focusing events’ that draw public attention” and that “Increased attention during and in wake of storms creates opportunities for public and private discourse around climate and disaster preparedness.”

Then, there is the extensive media coverage of this study. It was picked up by 134 news outlets and ranked in the 99.95th percentile of research articles (across all journals) of similar age in terms of online attention. Further, it was immediately incorporated into seven Wikipedia articles (likely having high leverage on AI queries, which would make its findings indistinguishable from scientific “fact”). This is affected by the aforementioned Media Coverage Bias, but it is also undoubtedly directly influenced by the efforts of Climate Central, which is explicitly an advocacy organization whose self-described specialty is media placement and dissemination.

The above sheds light on the reasons for certain choice biases in a particular study, but there is plenty of evidence that these selection biases are pervasive in the EEA field. After all, Dr. Myles Allen essentially founded the field with the motivation of answering the question, “Will it ever be possible to sue anyone for damaging the climate?”. This same motivation seems to animate many of the most high-profile scientists in the field today, like Allen’s protege, Dr. Friederike Otto (co-founder and leader of World Weather Attribution). She and her organization are frequently cited as bringing the necessary intellectual authority to credibly sue fossil fuel companies. She states the motivation of her work explicitly:

“Attributing extreme weather events to climate change, as I do
through my work as a climatologist, means we can hold
countries and companies to account for their inaction.”

Given the explicitly stated motivation of those in the EEA field, it is quite reasonable to suppose that there are major selection biases at play, and thus, it is not at all surprising that the collective output of the EEA field would look so different from more broad comprehensive assessments.

Judge Crushes Charleston Climate Case

Posted on August 8 by Ron Clutz

EID covers the legal thrashing visited upon Charleston plaintiffs seeking a judgment punishing Big Oil for their role in climate misfortunes. The article is Judge Shuts Down Charleston Climate Case, Warns of “Boundless” Liability. Excerpts in italics with my bolds and added images.

A South Carolina judge has dismissed Charleston’s climate lawsuit,
delivering a decisive setback to the climate litigation campaign.

Via a ruling on Wednesday, Judge Roger Young dismissed the case with prejudice – meaning Charleston cannot refile the claims – dealing a substantial blow for law firm Sher Edling and the Rockefeller-backed climate litigation campaign. This ruling follows a growing trend of similar dismissals in New York, Pennsylvania, New Jersey and Maryland, reinforcing the principle that climate policy is a national and global issue, not something individual states or cities can reshape using state law:

“… the Court concludes that, although Plaintiff’s claims purport to be about deception, they are premised on, and seek redress for, the effects of greenhouse gas emissions.”

A Slippery Slope

One of Judge Young’s most striking points was a clear warning about the “boundless” nature of the liability Charleston’s claims could create. If allowed to proceed, the city’s theory would open the floodgates for nearly limitless litigation – not just against energy producers, but a wide range of industries, including airlines, automakers, and agriculture:

“Under Plaintiff’s theory, any emitters of or contributors to greenhouse gas emissions — such as airlines, automotive manufacturers, power companies, and agricultural companies—could be liable for contributing to global climate change… … As with the list of plaintiffs, the list of potential defendants thus appears boundless.” (emphasis added)

Similarly, Judge Young emphasized that allowing such lawsuits would create a precedent where every weather event would potentially trigger legal action:

“Already, scores of states, counties, and municipalities have sued a hodgepodge of oil-and-gas companies for the alleged weather-related effects of climate change. If these lawsuits were successful, municipalities, companies, and individuals across the country could bring suits for injuries after every weather event.”

Time-Barred and Fundamentally Flawed

Even Charleston’s claim under South Carolina’s Unfair Trade Practices Act did not survive – barred by the state’s three-year statute of limitations. Judge Young noted that public awareness of climate change and its connection to fossil fuel use has existed for decades, undercutting any claim of recent discovery:

“Plaintiff’s Complaint is time-barred under South Carolina’s three-year statute of limitations because Plaintiff has long been on notice of the potential dangers of climate change and its connection to fossil-fuel use.”

The ruling also referenced constitutional limits and recent federal actions opposing these types of suits, specifically referencing President Trump’s April Executive Order targeting anti-energy lawfare.

Notably, Judge Young flatly rejected comparisons to tobacco and opioid litigation, stating Charleston’s claims fundamentally differ because the alleged harm depends on cumulative, global emissions – not direct, localized actions:

“A plaintiff smoking tobacco in South Carolina causes direct adverse health effects to that plaintiff in South Carolina. The City’s claims, by contrast, depend on interstate and international emissions allegedly causing global climate change, ultimately resulting in alleged in-state injuries caused by, for example, the weather. Because any alleged injury under Plaintiff’s claims necessarily relies on the cumulative effect of interstate and international emissions from global consumers, the claims are readily distinguishable from these other mass-tort cases and are uniquely precluded and preempted by federal law.”

BOTTOM LINE: This ruling sends a clear message: the courtroom is not the place to set national climate policy. As more judges reject these unfounded claims, the climate litigation campaign is losing both momentum and credibility.

Footnote from the ruling by Judge Roger Young

“This Court thus joins the “growing chorus of state and federal courts across the United States, singing from the same hymnal, in concluding that the claims raised by [climate-change plaintiffs] are not judiciable by any state court” and that “our federal structure does not allow . . . any State’s law[] to address [these types of climate-change] claims.”

The case was CITY OF CHARLESTON, Plaintiff, v.
BRABHAM OIL COMPANY, INC.; COLONIAL GROUP, INC.; ENMARK STATIONS, INC.; COLONIAL PIPELINE COMPANY; PIEDMONT PETROLEUM CORP.; EXXON MOBIL CORPORATION; EXXONMOBIL OIL CORPORATION; ROYAL DUTCH SHELL PLC; SHELL OIL COMPANY; SHELL OIL PRODUCTS COMPANY LLC; CHEVRON CORPORATION; CHEVRON U.S.A. INC.; BP P.L.C.; BP AMERICA INC.; MARATHON PETROLEUM CORPORATION; MARATHON PETROLEUM COMPANY LP; SPEEDWAY LLC; MURPHY OIL CORPORATION; MURPHY OIL USA, INC.; HESS CORPORATION; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66; and PHILLIPS 66 COMPANY,
Defendants.

ORDER GRANTING DEFENDANTS’ JOINT MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM AND FOR LACK OF PERSONAL JURISDICTION

EPA Proposal to Reconsider GHG Endangerment Finding

Posted on July 30 by Ron Clutz

nprm-12712-01-oar-vehicle-rule-reg-preamble-2025-0729 Download

From Executive Summary

In this action, the EPA proposes to rescind all greenhouse gas (GHG) emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines under CAA section 202(a). Upon review of the underlying actions and intervening legal and scientific developments, including recent decisions by the U.S. Supreme Court and the scientific information summarized in this preamble, the EPA no longer believes that we have the statutory authority and record basis required to maintain this novel and transformative regulatory program. We seek comment on all aspects of this proposal, including on the legal and scientific developments that are being subject to public comment for the first time in this rulemaking.

The EPA now proposes to rescind the Endangerment Finding and all resulting GHG emission standards for new motor vehicles and engines, including the light-duty, medium-duty, and heavy-duty vehicle and engine standards for model years (MY) 2012 to 2027 and beyond. The remainder of this section describes the need for regulatory action and the scope of the proposed action, including rescission of the Endangerment Finding, repeal of related GHG emission standards, and minor conforming adjustments to unrelated emission standards for new motor vehicles and engines that we are not proposing to alter as part of this rulemaking.

Section II of this preamble sets out relevant background, including the events leading up to the Endangerment Finding, the approach taken in the Endangerment Finding to analyzing the scientific record, and the regulations issued since 2009 in reliance on the Endangerment Finding. We also summarize the premises, assumptions, and conclusions in the Endangerment Finding and the scientific information, including empirical data, peer-reviewed studies, and real-world developments since 2009 that led the Administrator to develop concerns sufficient to initiate reconsideration of the ongoing validity and reliability of the Endangerment Finding.

Section III of this preamble describes our legal authority to rescind the Endangerment Finding and repeal the resulting GHG standards issued under CAA section 202(a). Because this proposed action would not impact fuel economy standards and emission standards for criteria pollutants and hazardous air pollutants regulated under the CAA, we explain the relationship between these regulations to set the outer bounds of amendments at issue in this rulemaking.

Section IV.A of this preamble describes our proposal to rescind these prior actions because the Endangerment Finding exceeded our statutory authority under CAA section 202(a). As explained further below, we propose that the term “air pollution” as used in CAA section 202(a) is best read in context as referring to local or regional exposure to dangerous air pollution, consistent with our longstanding practice before 2009. We further propose that CAA section 202(a) does not grant the Administrator “procedural discretion” to issue standalone findings that trigger a duty to regulate, or, conversely, to prescribe standards, without making the requisite findings for the particular air pollutant emissions and class or classes of new motor vehicles or engines at issue. We also propose that CAA section 202(a) does not authorize the Administrator to make separate findings for endangerment and causation or contribution. Rather, we propose that CAA section 202(a) requires the Administrator to find that the relevant air pollutant emissions from the class or classes of new motor vehicles or engines at issue cause, or contribute to, air pollution which endangers public health or welfare, without relying on emissions from stationary or other sources regulated by distinct CAA provisions. As the Supreme Court made clear in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), we can no longer rely on statutory silence or ambiguity to expand our regulatory power. And because the Nation’s response to global climate change concerns is an issue of significant importance that Congress did not clearly address in CAA section 202(a), we propose that the major questions doctrine further reinforces and provides an additional basis for our proposed interpretations and actions.

The Agency did not have the benefit of the Court’s decisions in Loper Bright and West Virginia, among other applicable precedents, when issuing the Endangerment Finding in 2009. Finally, we explain that the EPA reached contrary conclusions in the Endangerment Finding by misconstruing the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which vacated our denial of a petition for rulemaking on distinct grounds. Read on its own terms, Massachusetts did not require the Agency to find that GHGs are subject to regulation under CAA section 202(a) and does not support our implementation of the statute since 2009.

The Administrator’s review of the relevant information, including scientific literature, gave rise to serious concerns that our actions taken to regulate GHG emissions from new motor vehicles and engines exceed our statutory authority under CAA section 202(a) and are otherwise inappropriate. Continuing to impose billions of dollars in regulatory costs on American businesses and consumers without an adequate legal basis would threaten to undermine public confidence in our activities and commitment to fulfilling the Agency’s core mission: protecting human health and the environment. The EPA has expended significant resources implementing the GHG regulatory program for mobile sources and attempting to expand its GHG regulatory program to stationary sources with limited success in the courts and no apparent real-world results, often at the expense of programs that fall squarely within our statutory authority. Prompt action is needed to address these concerns with the benefit of public participation.

Relatedly, the Administrator has serious concerns that many of the scientific underpinnings of the Endangerment Finding are materially weaker than previously believed and contradicted by empirical data, peer-reviewed studies, and scientific developments since 2009. This proposal seeks public comment on these developments for the first time. Prompt action is needed to address these concerns, and the Administrator requests stakeholder input on the continuing vitality of the assumptions, predictions, and conclusions animating the Endangerment Finding.

No Right to a Stable Climate

Posted on July 29 by Ron Clutz

Judges in high courts are all claiming a “Human Right to a Stable Climate,” as though any court, parliament or government can make it happen. The latest proclamations come from the International Court of Justice and the Inter-American Court of Human Rights ( IACtHR )

The 234-page IACtHR advisory opinion sets out the court’s perspective on the climate emergency and human rights, recognizing that states have legal obligations under international law to protect current and future generations from the impacts of climate change, to take “urgent and effective” action to cut greenhouse gas emissions, to adapt, to cooperate, and to guard against climate disinformation and greenwashing.

Question to perplexity.ai: Could courts’ emphasis on human activity overlook natural climate variability evidence?

Answer: (my bolds) Courts’ emphasis on human activity as the primary driver of recent climate change is based on the strong scientific consensus reflected in assessments by bodies like the IPCC, and courts have generally accepted these conclusions as beyond reasonable dispute when adjudicating climate law cases23. This approach often involves taking “judicial notice” of mainstream climate science, meaning courts regard anthropogenic climate change as an established fact, obviating the need to litigate scientific basics repeatedly23.

However, this legal methodology can, in practice, result in
underweighting evidence of natural climate variability:

The dominant legal standard centers on whether human-caused disruptions introduce new or heightened risks to rights, rather than parsing the specific historical roles of natural versus anthropogenic drivers6. Thus, courts sometimes set a lower bar for causal linkage, assuming risks to rights where types of harm are deemed foreseeable consequences of climate change, even if local variability or confounding natural factors exist65.
Defense arguments in litigation, such as those in Juliana v. United States, have challenged the ability of current science to disentangle anthropogenic from natural variability (especially for region-specific impacts), but such arguments are usually overruled or considered less compelling compared to the broader trend evidence53.
Some court rulings have acknowledged the complexity and multiple contributors to climate outcomes, yet uphold state obligations for mitigation and adaptation, reasoning that even where natural variability exists, the unprecedented pace and scope of human forcing is sufficient to establish state duties under rights frameworks6.

In summary, while courts do not categorically ignore natural climate variability, their emphasis on human activity is guided by prevailing scientific consensus and the precautionary principle. This can lead to less rigorous scrutiny of the full extent of natural variability’s contribution, particularly where the focus is on the foreseeability and scale of rights-endangering risks from ongoing anthropogenic change. Legal recognition of these risks typically does not require natural and human factors to be weighed equally—potentially overlooking specific nuances of natural variability in individual cases6 53.

Caveat: There are exceptions, and courts have dismissed some claims where causal links to human activity were too indirect or not supported by sufficient evidence, especially in jurisdictions with stricter standards for standing or causation6. However, the overarching trend is to defer to consensus science prioritizing human-driven change as the principal legal concern.

Question to perplexity.ai: Could ignoring natural variability lead to misjudging climate damage extent?

Answer: (My bolds)

Ignoring natural climate variability in assessing climate damage could indeed lead to misjudging the extent and nuances of that damage. Scientific and assessment literature on climate impacts and natural resource damage emphasizes that both natural variability and human-driven climate change influence climate-related hazards and ecosystem responses, and failing to account for natural variability can complicate accurate attribution and magnitude estimation of damage.

Key points synthesized from relevant sources include:

Baseline Challenge and Detection Difficulty: Climate change increases variability and the frequency of extreme events such as droughts, floods, and storms, but natural variability also influences these patterns. This complicates establishing a stable baseline for comparison. Ignoring natural fluctuations can lead to an under- or overestimate of true climate-related damages, as it is harder to detect how much harm is caused specifically by human activity versus natural cycles5.
Attribution Complexity: Natural variability introduces uncertainty when attributing specific events or damages to human-caused climate change. Explicitly considering natural variability in event attribution studies increases uncertainty ranges but still supports the conclusion that human activity raises the likelihood and severity of some events. Neglecting natural variability risks oversimplifying cause-effect relationships and could distort the assessment of climate risks and damages6.
Changing Reference Conditions: The selection of appropriate reference or baseline conditions for assessing injury to natural resources needs to factor in both long-term trends and natural fluctuations altered by climate change. Static references ignoring natural variability may mischaracterize damage extent or recovery needs5.
Implications for Risk and Damage Assessment: Failure to incorporate natural variability may lead to misjudging vulnerabilities, underestimating risk likelihoods, and misguided policy decisions. Accurate modeling and impact assessment require analysis frameworks that integrate historical variability alongside anthropogenic warming influences27.

In summary, rigorous climate damage and risk assessments seek to integrate natural variability to improve accuracy and avoid misjudging the scale or cause of damage. While natural variability is not a reason to dismiss anthropogenic climate impacts, acknowledging it refines understanding and strengthens attribution and legal or policy responses.

This nuanced view aligns with the legal and scientific approaches courts rely upon when considering climate damage claims: they defer to comprehensive scientific consensus but remain mindful of uncertainties introduced by natural climate variability.

My Comment:

Not seeing much of that nuance from judges blindly following IPCC nostrums. The right to a stable climate ignores the fact the modern era is full of both warm and cool periods, including many times without any possible human influence.

A coincidental positive correlation is considered evidence of human causality, ignoring periods of weak or negative correlation.

ICJ Issues Biased Advice on Climate Change

Posted on July 23 by Ron Clutz

Activists hoping the opinion from the ICJ’s judges will have far-reaching legal consequences in the fight against climate change Image: Peter Dejong/AP Photo/picture alliance

The media is rampant today with headlines like these:

World Court says countries are legally obligated to curb emissions, protect climate, UN News

World’s top court says major polluters may need to pay reparations for climate harm, CNN

UN’s top court says failing to protect planet from climate change could violate international law, CBC

Top UN court says countries can sue each other over climate change, BBC

Top U.N. Court Says Countries Must Act on Climate Change, New York Times

Etc., Etc., Etc.

I asked perplexity.ai: (bolds in answer supplied by perplexity)

Question: How did the ICJ address scientists disputing IPCC reports like Clintel in its climate advice?

Answer: The International Court of Justice (ICJ), in its advisory proceedings on climate change, did not address or give consideration to scientists or groups—such as Clintel—who dispute the findings of the IPCC. Instead, the ICJ relied heavily and explicitly on the IPCC as the authoritative source on climate science throughout the process.

Key points from the available evidence:

The ICJ held a private meeting with IPCC scientists just before hearings began, reflecting the Court’s view of the IPCC as the “scientific pillar” of the climate change regime1.
This meeting was not part of the formal, public hearings and did not include scientists who dissent from the IPCC—states and organizations participating in the advisory proceedings had no opportunity to question or respond to IPCC scientists1.
The process was criticized for lacking transparency and procedural fairness precisely because it favored a single scientific perspective (the IPCC’s), with no indication that alternative scientific viewpoints were admitted or reviewed1.
The UN General Assembly’s request for the advisory opinion itself referenced the “utmost concern [for] the scientific consensus expressed” in the IPCC reports, reinforcing the Court’s mandate to treat the IPCC’s findings as the foundation for its analysis13.
Available commentaries and summaries of the ICJ process do not mention any engagement with scientists or organizations disputing IPCC conclusions, nor do they report that groups like Clintel were referenced or invited as experts13.
While the ICJ has, in rare past cases, consulted technical experts informally, in this climate case it only announced consultation with IPCC figures, reinforcing the exclusion of dissident scientific voices19.

In summary, the ICJ’s approach gave exclusive scientific authority to the IPCC and provided no forum, reference, or weight to scientists disputing its reports, such as those from Clintel13. The Court did not discuss or acknowledge the existence of such scientific disagreement in its process, instead treating the IPCC’s consensus as fact. This approach has been criticized for its lack of transparency and its failure to incorporate procedural safeguards for alternative scientific views19.

Followup Question: Why might the World Court have misunderstood the legal status of the Paris Accord?

Answer: The World Court might have appeared to misunderstand or at least oversimplify the legal status of the Paris Agreement because the Agreement’s nature is complex and somewhat ambiguous under international law, blending legally binding procedural obligations with politically framed, flexible commitments that lack sharp enforcement mechanisms.

Key reasons explaining why the Court could be seen as misunderstanding or glossing over these complexities include:

Legal Flexibility and Lack of Enforcement: The Paris Agreement is a treaty with binding procedural obligations but lacks strong accountability measures, sanctions, or punitive mechanisms for non-compliance1. Articles 13 and 15 establish monitoring and compliance mechanisms that are explicitly “non-intrusive” and “non-punitive,” reflecting the Agreement’s flexible, voluntary essence rather than strict legal constraints on outcome1. Courts may struggle to treat such a hybrid treaty as fully binding in the traditional sense.
Ambiguity over Obligation Types: The Paris Agreement distinguishes between “obligations of conduct” (procedural duties) versus “obligations of result” (achieving emission cuts). It requires parties to submit NDCs and report on implementation but does not legally bind States to achieve specific emission targets or outcomes34. This ambiguity can lead to varying interpretations of the Agreement’s binding force.
Differing State Practices and Interpretations: There remains disagreement among states and experts about whether the Paris Agreement creates firm legal obligations to prevent climate change or is largely aspirational with voluntary commitments6. Some states perceive it as political guidance rather than a hard treaty, influencing how international bodies perceive its weight.
Constraints of International Litigation and Court Jurisdiction: International courts like the ICJ have limited jurisdiction and cannot enforce treaty provisions on states unwilling to submit to their authority1. This constrains how formally the Court can treat the Agreement’s legal status, especially when major emitters are outside its compulsory jurisdiction16. The Court’s advisory role means it clarifies law based on existing commitments but cannot enforce or create new obligations.
Interaction with Customary International Law: Some legal scholarship suggests that customary international law—independent but related to treaty law—may impose broader climate duties on states, which complicates whether the Court grounds its decisions on the Paris Agreement alone or on evolving international legal norms1.

In sum, the World Court may have been perceived as misunderstanding the Paris Agreement’s legal status because the Agreement is simultaneously a legally binding treaty in form with procedural and transparency obligations, yet it remains politically flexible, non-punitive, and ambiguous regarding enforcement or specific outcome obligations. This hybrid nature poses challenges for courts in characterizing it strictly as a binding treaty imposing strong legal duties, thus potentially giving the appearance of oversimplification or misunderstanding in the Court’s advice.

Therefore, the Court’s approach likely reflects the difficulty of interpreting a treaty designed to maximize participation through flexibility rather than strong binding commitments, rather than a simple misunderstanding of the Paris Agreement’s status1 3 46.

My Summary

Despite the courtroom venue and judges participating in rendering an opinion, this was a political, not a legal process. A court of law seeks truth through an adversarial process whereby parties advocate for two or more viewpoints on the matter at hand, including facts and logic of the arguments. Here there was no hearing and weighing of differing evidence and perspectives, just a preconceived partisan political declaration.

Supreme Screw-up: Climate Fallacies Embraced by Canada’s Highest Court

Posted on July 23 by Ron Clutz

Canadian Supreme Court justices rendered an opionion regarding climate change that does not bear up under scrutiny. Former government litigator Jack Wright exposes the errors in his C2C Journal article Supreme Screw-up: How Canada’s Highest Court Got Climate Change Wrong. Excerpts in italics with my bolds and added images.

Many Canadians think of the Supreme Court as a wise and august body that can be trusted to give the final word on the country’s most important issues. But what happens when most of its justices get it wrong? Former government litigator Jack Wright delves into the court’s landmark ruling upholding the federal carbon tax and uncovers mistakes, shoddy reasoning and unfounded conclusions. In this exclusive legal analysis, Wright finds that the key climate-related contentions at the heart of the court’s decision were made with no evidence presented, no oral arguments and no cross-examination – and are flat wrong. Now being held up as binding judicial precedent by climate activists looking for ever-more restrictive regulations, the decision is proving to be not just flawed but dangerous.

The Supreme Court of Canada sits at the apex of the Canadian judicial ladder. But like any group of humans, the reasoning of its nine justices isn’t always right. What happens if the court’s reasons for decision include some mistakes and some confusing or inconsistent comments? Are all of Canada’s lower courts bound by these “precedents”? The short answer is no: a court’s decision is only precedent-setting for what it actually decided, and not concerning all of the detailed explanations for how the court got there. Still, erroneous reasoning at the top can create major problems as it often triggers unnecessary and harmful litigation that treats errors as binding precedents. That has proved to be the case with the errors in a crucial case that has profound economic, political and social implications affecting all Canadians.

Advocates for ever-increasing climate action have pounced on the decision in the case known as Reference re Greenhouse Gas Pollution Pricing Act, 2021 as precedent to justify further climate-related litigation, as if the courts or Parliament could stabilize the global climate. Such “lawfare”, as these kinds of tactics have come to be known, continues largely because of the non-binding comments in Greenhouse Gas. But the motivating claim – that these explanatory comments are binding precedents – is wrong.

They also misunderstand the special nature of a reference case.

In Canadian law a reference case is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue, usually the constitutionality of particular legislation. The opinion given by the Supreme Court is in the form of a judicial decision; strictly speaking, it is not legally binding, although no government has ever ignored such an opinion.

In Greenhouse Gas, the provinces of Ontario, Saskatchewan and Alberta sought the Supreme Court’s opinion on the constitutionality of the federal carbon tax, with all arguing that it is unconstitutional. In March 2021, a 7-2 majority upheld as constitutional Ottawa’s imposition of “backup” federal carbon pricing in any province which has no equivalent provincial measures. It did so based on the national concern doctrine (under the “peace, order and good government” clause in Canada’s Constitution).

In doing so, the majority unusually delved into the wisdom of climate and energy policy, which requires complicated scientific knowledge and resolving conflicting political priorities. The majority assumed – without any evidence – some crucial scientific facts about the causes and effects of climate change. There was no such evidence because a reference case is initiated at the appellate level and, unlike lower trial courts, appellate courts normally have no fact-finding function.

The majority made two important scientific assumptions. First, it assumed that climate change poses a threat to the survival of humanity. Second, it assumed that Canada’s climate is substantially controlled by Canada’s own emissions of greenhouse gases, chiefly carbon dioxide (CO₂). Based on these assumptions, it would follow that Canada can avert the harms of climate change to Canadians by reducing Canadian CO₂emissions through a carbon tax.

Suffice it to say that the high court’s two critical premises around which the whole reference case hinged were not proven material facts because there was no evidence before the Court. They were merely the untested assumptions of the seven justices. The first of these key assumptions is highly arguable; the second is outright fallacious. I will address the second of these assumptions first.

The Fantasy of a “Carbon Wall” Around Canada and its Provinces

The majority’s written decision, authored by Chief Justice Richard Wagner, contains a crucial assumption about the physics and chemistry of climate change. . . It held that severely harmful effects of emissions will mostly be caused by – and affect – people situated closest to the geographical origin of the emissions. This is a fallacy which I have termed the “Carbon Wall”.

The Carbon Wall fallacy leads to the error that the federal government can more easily control what the majority termed “grievous” interprovincial impacts caused by CO2 emissions from adjacent provinces. In essence, that government action can “wall off” the effects of greenhouse gas emissions around their area of origin. In fact, there is no CO2 “wall” around any country, nor can one ever be placed around a province by judicial finding or bureaucratic regulation. Unlike local pollutants, CO2 molecules emitted in the United States or China can flow over Canada and all around the planet, and vice-versa. Weather may be largely local, but climate is ultimately global, and so is the movement (and any climate effects) of CO2.

The “Carbon Wall” fallacy: The idea that local CO2 emissions cause local climate change is a common misunderstanding; Canada’s top justices accepted it, envisioning CO2 as akin to traditional pollution that might flow down rivers and cross provincial boundaries, and whose damage can therefore be locally controlled. (Sources of photos: (top) Shutterstock; (bottom) Daveography.ca, licensed under CC BY-NC-SA 2.0)

Thus, the majority assumed that climate change consists of CO2, following its emission, having a direct noxious climate impact upon geographically contiguous areas. We are not told, however, what particular form that harm takes, how it is caused or on what evidence it is based. But if Canada’s senior-most justices truly understood the basic mechanics of climate, they would have realized that virtually the entire impact of which they speak must come from outside the country, since Canada generates only 1.5 percent of global CO2 emissions, making each province only a tiny contributor to total global emissions.

Other Fallacious or Unsupported “Carbon Wall” Thinking

The majority also incorrectly suggested (para. 10) that, “The effects of climate change have been and will be particularly severe and devastating in Canada.” There is no evidence to support this assumption. While basic climatology holds that the Earth’s polar regions will warm more than lower latitudes, this is not unique to Canada. And rising levels of CO2 have also generated benefits through increasing agricultural productivity and forest and plant growth.

The good news: The Supreme Court said climate change would be “particularly severe and devastating in Canada”, an assumption for which there is no evidence; rising levels of atmospheric CO2 have actually led to a “greening” of the Earth, increasing agricultural productivity and forest and plant growth. (Source of photos: Pexels)

All that the Supreme Court’s ‘twice as fast’ alarm about Canadian warming shows is that Canadians live on land and not the ocean. The statement, while technically true, communicates nothing of significance. But it is highly misleading.

Canada is not bound in any meaningful way by the Paris Agreement, its contents should not influence decisions by Canadian courts, and the Supreme Court majority in Greenhouse Gas found nothing from the Paris Agreement that would be meaningfully precedential for those seeking to save themselves from ‘climate damage’.

The Assumption of an Existential Threat to Humanity

Climate change, Greenhouse Gas declares emphatically (para. 167), is “an existential challenge…a threat of the highest order to the country, and…[an] undisputed threat to the future of humanity [that] cannot be ignored.” It would seem to follow from this resounding pronouncement that the planet requires rapid decarbonization, with a massive and very costly diversion of resources to do so, and without regard to the cost trade-offs for other important human needs such food, housing and transportation or for such matters as safety and security.

Weighing such competing human needs is a political process, not a judicial judgment. Yet the Supreme Court’s assertions of catastrophe stand alone in mid-judgment, devoid of expert sources, of any investigation of facts, or of any reasoning from facts. This is unfortunate, because the court majority’s seemingly unqualified belief is anything but “undisputed”.

Many experts specifically dispute that humanity’s survival is at stake. Nobel Laureate William Nordhaus, the Yale University economist who is considered the “father” of the carbon tax, does so in his book The Climate Casino (page 134). Nor does the IPCC itself make such a claim.

“For most economic sectors, the impact of climate change will be small relative to the impacts of other drivers. Changes in population, age, income, technology, relative prices, lifestyle, regulation, governance, and many other aspects of socioeconomic development will have an impact on the supply and demand of economic goods and services that is large relative to the impact of climate change.” IPCC Report, Working Group 2, 2014

As Greenhouse Gas involved no evidentiary procedures, then what could have been the source of the Supreme Court’s ‘existential threat’ declaration? A search of the court files shows that this was assembled from an affidavit in Canada’s Record by a federal manager, John Moffet, an assistant deputy minister with Environment and Climate Change Canada.

Suffice it here to note that Canadian evidentiary rules do not allow for reliance upon a federal government manager’s affidavit for dispositive proof of an existential threat to an entire nation and indeed the whole planet. Moffet was neither disinterested in the dispute nor an expert on any aspect of climate science or any related scientific discipline that would qualify him as an independent expert witness.

The Unfolding Danger in the Supreme Court’s Climate Assumptions

There is no sense in parsing each of the assertions made by the majority in the Background, quite a few of which are highly questionable. But there is no existential threat inference to be drawn even if all are accepted. Climate change may be a serious problem, but it is only one among many other serious and resource-consuming human problems to be weighed and balanced.

If the Supreme Court of Canada chooses to evaluate complex climate policy in future (which the Court really lacks the institutional capacity to do), it should at least make arrangements for a full evidentiary record. For climate change, that would be enormous and would take months of hearings. A Royal Commission would be better placed to handle such a mission.

But judgments like Greenhouse Gas are wholly inadequate. It contains no true factual findings of an existential threat to humanity, or of a Carbon Wall around Canada, or of a possible Carbon Wall controllable by federal regulation around each of our provinces. There is no federal claim to be saving Canadians from interprovincial climate “pollution” and only a diffuse and very insignificant Canadian contribution to overall planetary climate change. Thus, the majority’s assumptions cannot serve as authority for the lower courts to adjudicate the cases that come before them under the guise of saving Canadians from climate change.

We cannot allow single-issue adherents (often wielding generous federal funding)
to repurpose our courts on pretextual bases and achieve goals
that they were denied through the ballot box.

US Supremes Rein In Politicized Environmental Reviews

Posted on June 2 by Ron Clutz

On May 29, 2025 SCOTUS ruled unanimously that NEPA (National Environmental Protection Act) can no longer be a tool for political activists against development projects. The report from MSN is US Supreme Court limits environmental reviews in Utah railway ruling. Excerpts in italics with my bolds and added images.

The U.S. Supreme Court dealt a setback to environmentalists on Thursday by allowing federal agencies to limit the scope of their reviews of the environmental impact of projects they regulate, as the justices bolstered a Utah railway project intended to transport crude oil.

The 8-0 ruling overturned a lower court’s decision that had halted the project and had faulted an environmental impact statement issued by a federal agency called the Surface Transportation Board in approving the railway as too limited in scope. The project was challenged by environmentalists and a Colorado county.

A coalition of seven Utah counties and an infrastructure investment group are seeking to construct an 88-mile (142-km) railway line in northeastern Utah to connect the sparsely populated Uinta Basin region to an existing freight rail network that would be used primarily to transport waxy crude oil.

The case tested the scope of environmental impact studies that federal agencies must conduct under a U.S. law called the National Environmental Policy Act (NEPA), enacted in 1970 to prevent environmental harms that might result from major projects. The law mandates that agencies examine the “reasonably foreseeable” effects of a project.

The ruling, authored by conservative Justice Brett Kavanaugh, was joined by four other conservative justices. The court’s three liberal justices filed a separate opinion concurring in the outcome.

Kavanaugh wrote that agencies need only consider environmental effects of a project at hand and not the “effects from potential future projects or from geographically separate projects,” and that courts must offer agencies “substantial deference” regarding the scope of these assessments.

“NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decision-making, not to paralyze it,” Kavanaugh wrote.

Background Post: US Supremes Hear Climate Lawfare Case to Stop Oil Railway

IER reports the news from December in article The Supreme Court Takes on a Case Involving the National Environmental Policy Act. Excerpts in italics with my bolds and added images.

Key Takeaways

1 The Supreme Court has heard a major NEPA case that could affect investment in energy and other infrastructure projects in America.

2 Seven County Infrastructure Coalition v. Eagle County, Colorado will decide whether permit applicants must anticipate far-flung speculative impacts over which federal agencies have no control.

3 The case involves an 88-mile railway accessing oil production in the Uinta Basin in Utah, allowing expansion of domestic oil production as well as access to essential minerals in the region.

4 Green advocates sued the Surface Transportation Board because it approved without considering alleged but inestimable impacts far from the project.

5 Lower courts have sided with the Greens, who oppose mineral and energy development.

6 SCOTUS is expected to clarify the burdens projects must face to comply with NEPA, which has become a tool of delay and denial by those opposing projects of all kinds in the United States.

7 Congress is also looking at NEPA streamlining as the act has become an impediment to rational development in the United States.

The Supreme Court recently heard a major case, Seven County Infrastructure Coalition v. Eagle County, Colorado, that will affect the scope of the National Environmental Policy Act (NEPA). The case concerns the permitting of a proposed Utah railway that would ship oil from the Uinta Basin, potentially quadrupling its oil production. The 88-mile Uinta Basin Railway would connect the oil fields of northeastern Utah to the national rail network running alongside 100 or so miles of the Colorado River to reach oil refineries on the Gulf Coast. According to The Hill, at issue is whether and when upstream and downstream environmental impacts should be considered as part of federal environmental reviews. The company behind the railway and a group of Utah counties appealed a lower court decision to the Supreme Court, arguing that those indirect impacts are beyond the scope of the federal reviews.

Background

The case concerns a rail line to support oil development and mineral mining. In 2021, the federal Surface Transportation Board (STB) issued a 3,600-page environmental impact statement to comply with NEPA and approved the rail line. The NEPA mandates that federal agencies assess the environmental effects of projects within their authority. Any major initiative that is managed, regulated, or authorized by the federal government must undergo a NEPA evaluation, a process that can span years and frequently exposes projects to legal challenges.

The STB analyzed the railway’s potential effects on local water resources, air quality, protected species, recreation, local economies, the Ute Indian tribe, and other factors. Environmental groups, however, sued the agency, saying that it failed to examine sufficiently how the railway might affect the risk of accidents on connecting lines hundreds of miles away and to assess emissions in “environmental justice communities” on the Gulf Coast from increased oil shipments, among other supposed shortcomings.

According to the Wall Street Journal editorial board, “a D.C. Circuit Court of Appeals panel sided with the plaintiffs and told the STB it must consider the line’s upstream and downstream effects even if they were hard to predict and beyond the control of the agency and developers. This includes the effects of oil shipments on Gulf Coast refiners and their contributions to climate change.” The appeals court ruling found that the federal STB violated the Endangered Species Act and the Interstate Commerce Commission Termination Act when it permitted the project.

Furthermore, the editorial board also explained that lower court judges—those on the D.C. and Ninth Circuits—ignored the Supreme Court’s past rulings and imposed arbitrary permitting requirements with no limiting principle. The STB lacks authority over Gulf Coast refiners and cannot prevent climate change.

Court Rulings Regarding NEPA

The Supreme Court has heard other related cases and held that agencies need not consider indirect and unpredictable impact, most recently in a 2004 case, Department of Transportation v. Public Citizen. In that case, the Supreme Court held that agencies need only analyze environmental impact with “a reasonably close causal relationship” over which they have “statutory authority” and which they can prevent.

In 2020, the Supreme Court green-lit approval for permits for the Atlantic Coast Pipeline after nearly seven years of litigation, but the pipeline was scrapped due to legal delays that raised project costs significantly. It takes an average of 4.2 years to litigate a NEPA challenge, which adds to the four or more years to obtain a federal permit. These delays are what frustrate investment in new projects, slowing job creation and economic expansion in the United States.

A judge struck down a Montana coal mine permit because a federal agency did not consider the climate effects of coal combustion in Asia. Additionally, a 225-mile electric transmission line in Nebraska has been stuck in permitting for 10 years because a lower court invalidated a U.S. Fish and Wildlife permit.

Conclusion

The Supreme Court is tackling a case involving the scope of a federal environmental law, NEPA, that involves a rail line to move oil. In this case, lower courts agreed with environmental groups, who are challenging the government’s permit approval of the rail line. The case is instrumental to the issue of what should be considered when determining potential environmental damages. Congress recognizes that NEPA needs reform as delays over lawsuits have killed projects and dramatically increased their costs and it continues to debate ways to make federal permitting easier and quicker. Until that reform happens, however, Supreme Court Justices need to reign in the environmental limits of NEPA so that needed projects can progress in America.

Again, There is No Right to a Stable Climate

Posted on June 1 by Ron Clutz

Announced this week was this from Inside Climate News: Trump Executive Orders Violate Young People’s Rights to a Stable Climate, a Lawsuit Alleges. Excerpts in italics with my bolds.

Twenty-two young people from across the country sued the
Trump administration over the executive orders,
which prioritize the expansion of fossil fuels.

The complaint, filed Thursday in the U.S. District Court in Montana, challenges three executive orders: “Unleashing American Energy,” “Declaring a National Energy Emergency” and “Reinvigorating America’s Beautiful Clean Coal Industry.” The lawsuit argues that with the orders, the Trump administration knowingly is advancing an agenda that will increase greenhouse gas pollution that already is stressing the global climate to a dangerous extent.

The litigation argues the situation infringes on the young people’s constitutional rights to life and liberty, as well as falling afoul of other laws approved by Congress that protect public health and the environment. The plaintiffs want the court to declare the executive orders unconstitutional, block their implementation and reaffirm the legal limits on presidential power.

“From day one of the current administration, President Trump has issued directives to increase fossil fuel use and production and block an energy transition to wind, solar, battery storage, energy efficiency, and electric vehicles (“EVs”),” the lawsuit states. “President Trump’s EOs falsely claim an energy emergency, while the true emergency is that fossil fuel pollution is destroying the foundation of Plaintiffs’ lives.”

It’s the same argument from the same people (Our Children’s Trust) that was shot down in flames just a year ago. There were multiple attempts to undo the damaged legal maneuver to no avail. Below is why this latest litigation should be put out of its misery at once.

Appeals Court Rules Against Kids’ Climate Lawsuit, May 1, 2024

Ninth Circuit Court of Appeals grants Federal government’s petition for writ of mandamus in the case of Juliana v. United States, originally filed in 2015. Ruling excerpts are below in italics with my bolds. 20240501_docket-24-684_order

In the underlying case, twenty-one plaintiffs (the Juliana plaintiffs) claim that—by failing to adequately respond to the threat of climate change—the government has violated a putative “right to a stable climate system that can sustain human life.” Juliana v. United States, No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or. Dec. 29, 2023). In a prior appeal, we held that the Juliana plaintiffs lack Article III standing to bring such a claim. Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). We remanded with instructions to dismiss on that basis. Id. The district court nevertheless allowed amendment, and the government again moved to dismiss. The district court denied that motion, and the government petitioned for mandamus seeking to enforce our earlier mandate. We have jurisdiction to consider the petition. See 28 U.S.C. § 1651. We grant it.

In the prior appeal, we held that declaratory relief was “not substantially likely to mitigate the plaintiffs’ asserted concrete injuries.” Juliana, 947 F.3d at 1170. To the contrary, it would do nothing “absent further court action,” which we held was unavailable. Id. We then clearly explained that Article III courts could not “step into the shoes” of the political branches to provide the relief the Juliana plaintiffs sought. Id. at 1175. Because neither the request for declaratory relief nor the request for injunctive relief was justiciable, we “remand[ed] th[e] case to the district court with instructions to dismiss for lack of Article III standing.” Id. Our mandate was to dismiss.

The district court gave two reasons for allowing amendment. First, it concluded that amendment was not expressly precluded. Second, it held that intervening authority compelled a different result. We reject each.
The first reason fails because we “remand[ed] . . . with instructions to dismiss for lack of Article III standing.” Id. Neither the mandate’s letter nor its spirit left room for amendment. See Pit River Tribe, 615 F.3d at 1079.
The second reason the district court identified was that, in its view, there was an intervening change in the law. District courts are not bound by a mandate when a subsequently decided case changes the law. In re Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The case the court identified was Uzuegbunam v. Preczewski, which “ask[ed] whether an award of nominal damages by itself can redress a past injury.” 141 S. Ct. 792, 796 (2021). Thus, Uzuegbunam was a damages case which says nothing about the redressability of declaratory judgments. Damages are a form of retrospective relief. Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is prospective. The Juliana plaintiffs do not seek damages but seek only prospective relief. Nothing in Uzuegbunam changed the law with respect to prospective relief.

We held that the Juliana plaintiffs lack standing to bring their claims and told the district court to dismiss. Uzuegbunam did not change that. The district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.

Background July 2023: Finally, a Legal Rebuttal on the Merits of Kids’ Climate Lawsuit

As reported last month, the Oregon activist judge invited the plaintiffs in Juliana vs US to reopen that case even after the Ninth Circuit shot it down. Now we have a complete and thorough Motion from the defendant (US government) to dismiss this newest amended complaint. Most interesting is the section under the heading starting on page 30. Excerpts in italics with my bolds and added images.

Plaintiffs’ Claims Fail on the Merits

Because Plaintiffs’ action fails at the jurisdictional threshold, the Ninth Circuit never reached—and this Court need not reach—the merits of the claims. . . Plaintiffs’ second amended complaint, which supersedes the first amended complaint, asserts the same claims that were brought in the first amended complaint, which this Court addressed in orders that the Ninth Circuit reversed. Defendants thus renew their objection that Plaintiffs’ claims fail on the merits and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

A. There is no constitutional right to a stable climate system.

The Supreme Court has repeatedly instructed courts considering novel due process claims
to “‘exercise the utmost care whenever . . . asked to break new ground in this field,’… lest the liberty protected by the Due Process Clause be subtly transformed” into judicial policy preferences. More specifically, the Supreme Court has “regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’” Plaintiffs’ request that this Court recognize an implied fundamental right to a stable climate system contradicts that directive, because such a purported right is without basis in the Nation’s history or tradition.

The proposed right to a “stable climate system” is nothing like any fundamental right ever recognized by the Supreme Court. The state of the climate is a public and generalized issue, and so interests in the climate are unlike the particularized personal liberty or personal privacy interests of individuals the Supreme Court has previously recognized as being protected by fundamental rights. “[W]henever federal courts have faced assertions of fundamental rights to a ‘healthful environment’ or to freedom from harmful contaminants, they have invariably rejected those claims.”. Plaintiffs’ First Claim for Relief must be dismissed.

B. Plaintiffs fail to allege a cognizable state-created danger claim.

The First Claim for Relief must also be dismissed because the Constitution does not impose an affirmative duty to protect individuals, and Plaintiffs have failed to allege a cognizable claim under the “state-created danger” exception to that rule.
As a general matter:

[The Due Process Clause] is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

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.

Plaintiffs contend that the government’s “deliberate actions” and “deliberate indifference” with regard to the dangers of climate change amount to a due process violation under the state-created danger exception.

First, Plaintiffs have identified no harms to their “personal security or bodily integrity” of the kind and immediacy that qualify for the state-created danger exception. . . But here, Plaintiffs allege that general degradation of the global climate has harmed their “dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, [and] maintain their bodily integrity” and has prevented them from “lead[ing] lives with access to clean air, water, shelter, and food.” Those types of harm are unlike the immediate, direct, physical, and personal harms at issue in the above-cited cases.

Second, Plaintiffs identify no specific government actions—much less government actors—that put them in such danger. Instead, Plaintiffs contend that a number of (mostly unspecified) agency actions and inactions spanning the last several decades have exposed them to harm. This allegation of slowly-recognized, long-incubating, and generalized harm by itself conclusively distinguishes their claim from all other state-created danger cases recognized by the Ninth Circuit.

Third, Plaintiffs do not allege that government actions endangered Plaintiffs in particular. . . As explained above, Plaintiffs’ asserted injuries arise from a diffuse, global phenomenon that affects every other person in their communities, in the United States, and throughout the world.

For all these reasons, there is no basis for finding a violation of Plaintiffs’ due process right under the state-created danger doctrine, and Plaintiffs’ corresponding claim must be dismissed.

C. No federal public trust doctrine creates a right to a stable climate system.

Plaintiffs’ Fourth Claim for Relief, asserting public trust claims, should be dismissed for two independent reasons. First, any public trust doctrine is a creature of state law that applies narrowly and exclusively to particular types of state-owned property not at issue here. That doctrine has no application to federal property, the use and management of which is entrusted exclusively to Congress. . .Consequently, there is no basis for Plaintiffs’ public trust claim against the federal government under federal law.

Second, the “climate system” or atmosphere is not within any conceivable federal public trust.

1. No public trust doctrine binds the federal government.

Plaintiffs rely on an asserted public trust doctrine for the proposition that the federal government must “take affirmative steps to protect” “our country’s life-sustaining climate system,” which they assert the government holds in trust for their benefit. But because any public trust doctrine is a matter of state law only, public trust claims may not be asserted against the federal government under federal law. . . The Supreme Court has without exception treated public trust doctrine as a matter of state law with no basis in the United States Constitution.

2. Any public trust doctrine would not apply to the “climate system” or the atmosphere.

Independently, any asserted public trust doctrine does not help Plaintiffs here. Public trust cases have historically involved state ownership of specific types of natural resources, usually limited to submerged and submersible lands, tidelands, and waterways. . . The climate system or atmosphere is unlike any resource previously deemed subject to a public trust. It cannot be owned and, due to its ephemeral nature, cannot remain within the jurisdiction of any single government. No court has held that the climate system or atmosphere is protected by a public trust doctrine. Indeed, the concept has been widely rejected.

For all these reasons, the Court should dismiss Plaintiffs’ Fourth Claim for Relief.

Background Post Update on Zombie Kids Climate Lawsuits: (Juliana vs. US) (Held vs Montana)

Six Good Reasons to Overturn EPA CO2 Ruling

Posted on March 29 by Ron Clutz

Paul Driessen makes six strong points in his Town Hall article Reexamining the Obama Era Endangerment Finding. Excerpts in italics with my bolds and added images.

The supposed climate cataclysm consensus is disintegrating under growing pressure from reality. Green energy subsidies, regulations and mandates are crumbling. Greenpeace has been hit with a $667-million judgment for conspiracy, defamation, trespass, and fostering arson and property destruction.

Last year’s “Buy a Tesla – save the planet” placards have been exchanged for “mostly peaceful” protests based on “Torch a Tesla – save our democracy” and infernos of toxic pollution and “carbon” emissions.

Even higher anxiety is battering climate activists from the Lee Zeldin Environmental Protection Agency’s review of EPA’s 2009 “Endangerment Finding” (EF) – the foundation and justification for restrictive Obama and Biden Era standards and regulations on permissible electricity generation, automobiles, furnaces, home appliances and much more. Six Good Reasons to Overturn:

CO2 is the Essence of Life on Earth. Damning it as a Pollutant is absurd and ignorant.

Humans and animals exhale carbon dioxide when they breathe, combustion processes also emit CO2, and during photosynthesis plants absorb CO2 and emit oxygen. More atmospheric CO2 helps plants grow better, faster and with less water. Nearly all life on Earth depends on this process. It’s basic science.

That’s why the Clean Air Act doesn’t include carbon dioxide in its list of dangerous pollutants, along with carbon monoxide, lead, nitrogen dioxide, ground-level ozone, particulates and sulfur dioxide.

But fossil-fuel-hating activists blame CO2 for the alleged “climate crisis” – and in Massachusetts v. EPA the US Supreme Court said EPA could regulate CO2 emissions if the agency found that they “cause or contribute” to “air pollution” that may be “reasonably anticipated” to “endanger public health or welfare.”

The Obama EPA quickly determined that they did and issued an Endangerment Finding that gave the agency effective control over America’s energy, transportation, industries, furnaces and stoves– indeed, over almost every facet of our lives and living standards – to help “fundamentally transform” the nation.

In formulating its decision, EPA did no research of its own, relied heavily on GIGO computer models and outdated technical studies, dismissed the clear benefits of rising atmospheric CO2 levels, and ignored studies that didn’t support its decision. EPA even told one of its own experts (who had offered evidence and analyses contradicting official claims) that “the administration has decided to move forward [on implementing the EF] and your comments do not help the legal or policy case for this decision.”

That alone is a compelling reason for reversing the Endangerment Finding. But other realities also argue convincingly that EPA’s 2009 action should be nullified.

EPA had no authority to convert plant-fertilizing, life-giving carbon dioxide into a dangerous, health-threatening pollutant.

First, Massachusetts v. EPA has been sidelined, rendered irrelevant or effectively reversed.

West Virginia v. EPA (2022) ruled that federal agencies may not violate the “major questions doctrine,” which holds that, in the absence of clear congressional direction or authorization, agencies may not make decisions or issue regulations “of vast economic and political significance.”

The Obama EPA had no clear congressional language or authorization to declare that carbon dioxide is a pollutant that would likely “endanger public health or welfare.” The Supreme Court’s minimal guidance in Massachusetts underscores the absence of congressional intent or direction. The process EPA used in rendering its predetermined finding demonstrates how little actual science played a role. And the enormous significance and impact of the EF decision and subsequent regulations can hardly be disputed.

Similarly, the SCOTUS 2024 ruling in Loper Bright v. Raimondo overturned the court’s 1984 decision in Chevron v. NRDC and ended judicial deference to government agencies (the “Chevron doctrine”). Bureaucrats may no longer devise “reasonable interpretations” of unclear statutory language if those interpretations would significantly expand regulatory powers or inflate private sector costs.

These two decisions mean EPA had no authority to convert plant-fertilizing, life-giving carbon dioxide into a dangerous, health-threatening pollutant.

Natural Climate Forces and CO2 Benefits Were Ignored by EPA 2009 Ruling

Second, reams of post-2009 studies and analyses show that CO2 is hugely beneficial to forests, grasslands and croplands – and that CO2 and other greenhouse gases (GHGs) have not replaced the powerful, complex, interconnected natural forces that have always driven global warming, climate change, ice ages, Little Ice Ages, and extreme weather events. EPA ignored this in 2009.

Others demonstrate that there is no climate crisis, nothing unprecedented in today’s climate and weather, and nothing modern industrialized societies cannot cope with far more easily than our ancestors did.

(See Climate Change Reconsidered II, CO2 Coalition studies, NOAA hurricane history, US tornado records, and studies the Trump EPA will undoubtedly consult during its EF reconsideration.)

Human Lives are Sustained by Hydrocarbon Fuels and By-Products

Third, our energy, jobs, living standards, health, welfare, national security and much more depend on fossil fuels – for energy and for pharmaceuticals, plastics and thousands of other essential products that are manufactured using petrochemical feedstocks.

Developing Nations Need and Will Use More Hydrocarbons in Any Case

Fourth, China, India and other rapidly developing nations also depend on fossil fuels – and in fact are increasing their coal and petroleum use every year – to build their industries and economies and improve their people’s health and living standards. They are not about stop doing so to appease those who insist the world faces a climate crisis. That means even eliminating coal, oil, gas and petrochemical use in the United States would have no effect on global GHG emissions.

Primary Threat to Earth Future is Losing Reliable, Affordable Energy

Finally, the primary threats to human and planetary health and welfare come not from using fossil fuels – but from eliminating them, trying to switch to “clean, green, renewable” energy, and no longer having vital petrochemical products.

As Britain and Germany have shown, switching to intermittent, weather-dependent wind and solar energy with backup power raises electricity prices to 3-4 times what average Americans currently pay. Industries cannot compete internationally, millions lose their jobs, living expenses soar, and families cannot afford to heat their homes in winter or cool them in summertime.

Thousands die unnecessarily every year from heatstroke, hypothermia, and diseases they would survive if they weren’t so hot, cold or malnourished.

In poor countries, millions die annually from indoor pollution from wood and dung fires, from spoiled food due to lack of refrigeration, from contaminated drinking water due to the absence of sanitation and treated water, and from diseases that would be cured in modern healthcare systems.

The common factor in all these deaths is the absence of reliable,
affordable energy, largely imposed by climate-focused bureaucrats
who finance only wind and solar projects in poor nations.

Wind and solar power, electric vehicle and grid-backup batteries, and associated transmission lines require metals and minerals mining and processing on unprecedented scales, power-generation facilities blanketing millions of acres of croplands and wildlife habitats, and the disposal of gigantic equipment that breaks or wears out quickly and cannot be recycled.

Reliance on wind, solar and battery power also means blackouts amid heatwaves and cold spells, cars stalled in snowstorms and hurricane evacuations – and thus still more deaths.

A slightly warmer planet with more atmospheric CO2 would be greatly beneficial for plants, wildlife and humanity. A colder planet with less carbon dioxide would significantly reduce arable croplands, growing seasons, wildlife habitats and our ability to feed humanity.

EPA’s 2009 Endangerment Finding ignored virtually all these realities.
EPA Administrator Lee Zeldin’s reexamination of that decision
must not repeat that mistake.

Greenpeace Punished for Pipeline Vandalism, Look Out Dark Money Agitators

Posted on March 20 by Ron Clutz

In his Clash Daily report, Wes Walker connects the dots concerning domestic terrorism after the South Dakota jury verdict Why ENORMOUS Judgment Against Greenpeace Should Have Dem Dark Money In A Cold Sweat. Excerpts in italics with my bolds and added images.

Outsourcing your malicious behavior is no longer
a get-out-of-consequences-free card

This should be especially bad news for any of the dark-money groups that have quietly been ramping up violence against politically expedient targets — say, Tesla, for example.

What could a North Dakota jury judgment handed down against Greenpeace over a pipeline have to do with dark money politics-for-hire across the country? Quite a lot, actually.

At issue were the pipeline protests in North Dakota like the one where environmental activists cared so DAMNED much about the land that it took a state of emergency and the Army Corps of Engineers to avert an environmental catastrophe:

“Warm temperatures have accelerated snowmelt in the area of the Oceti Sakowin protest camp … Due to these conditions, the governor’s emergency order addresses safety concerns to human life as anyone in the floodplain is at risk for possible injury or death,” said the statement.

However, “the order also addresses the need to protect the Missouri River from the waste that will flow into the Cannonball River and Lake Oahe if the camp is not cleared and the cleanup expedited,” the statement read.

…Just how much waste and trash did the environmentally conscious DAPL protesters leave? “Local and federal officials estimate there’s enough trash and debris in the camp to fill about 2,500 pickup trucks,” reported AP.

Not surprisingly, months-long protests are chosen because they can cause both damage and harm, depending on the group, the tactics, and their intent.

The owner and operator of the pipeline, who lost an enormous contract as a result of their actions, took the protesters to court. They suffered serious financial harm and those who caused it should bear the responsibility for making them whole. Modern notions of protest notwithstanding, that’s how the court system was designed.

When they took to court Greenpeace and the Red Warrior Camp
(who the plaintiff claimed was their proxy)
on exactly this principle, the jury agreed.

After two days of deliberation, the New York Times reported, the jury returned the verdict. Energy Transfer, the owner and operator of the pipeline, filed the lawsuit in North Dakota state court against Greenpeace and Red Warrior Camp, which Energy Transfer claimed was a front for Greenpeace, and three individuals.

The lawsuit alleges that Greenpeace had engaged in a misinformation campaign with mass emails falsely claiming that the Dakota Access Pipeline would cross the sovereign land of the Standing Rock Sioux Tribe. In court filings, Energy Transfer claimed protesters engaged in a campaign of “militant direct action,” including trespassing on the company’s property, vandalizing construction equipment, and assaulting employees and contractors. —JustTheNews

This comes at a very bad time for violent leftwing activists. For years, the establishment left has been somewhere between indifferent to, or even happy to see violence on the streets, so long as that violence aligns with causes on the political left.

You never hear the kind of breathless language the establishment left uses when describing, for example ‘the Proud Boys’ when they describe, say, Antifa, BLM, Jayne’s Revenge (violent abortion activists), Palestinian Protesters, trans extremists, or (now) anti-Tesla crowds embracing forms of violence ranging from rioting on the streets, storming a building and threatening a young woman inside it, holding universities hostage, or vandalizing/firebombing Christian pro-life institutions, threatening churches, or most recently attacking anyone or anything with a Tesla connection.

The one thing so many of these movements including the current organized attacks against Tesla — have in common is copious amounts of financial backing. Efforts like what we have seen in DOGE, not to mention an FBI interested in prosecuting such crimes instead of helping them raise bail money — will be a game-changer on the investigation side of this problem.

AG Bondi, and those working with her have made it clear that investigating these fire bombings (and the SWAT-ings) will be treating the use of incendiary devices under statutes listing such actions as a federal crime punishable by up to 20 years in prison.

If the logic of this Greenpeace case is extended to culpability of the Dark Money orgs who have been using third-party agitator groups as arm’s-length shock troops for hire that give them a plausible deniability…

… this North Dakota ruling may set a precedent that says otherwise. One that other groups who have been harmed by political activism over the last number of years might play ‘follow the money’ with in seeking the redress of their harms.

Elon seems to think the breadcrumbs for a lot of the dark money issues will take us back to familiar names like ‘Act Blue’ or ‘Arabella Advisors’. If the early clues at DOGE, and the mayhem unfolding at Act Blue are any indicator, he could be on to something there.

It would take some imaginative thinking to come up with deterrents to a purely mercenary cause-of-the-day agitator group than the twin prongs of drying up the money supply and dropping the perpetrators in a hole where they can be completely forgotten about by society for a decade or two.

And if the feds draw the same inference with criminal culpability
that the jury in North Dakota just did?

Those media establishment types who were publicly giddy about Biden’s use of RICO statutes to take down Trump will soon be choking on their words and looking to bury records of their public statements cheering the Trump team prosecutions.

	Ron Clutz on Why Rethinking Climate Change…
	Harold Pierce on Why Rethinking Climate Change…
	Ron Clutz on Lawfare Begins Against Repeali…
	davidrussell22 on Lawfare Begins Against Repeali…
	Ron Clutz on Let’s Talk About Fixing…

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