Climate Litigation

Climate Lawsuits in Montana

Posted on by Ron Clutz

Ed Berry provides an update and background on climate lawfare in his home state.

There have been three climate lawsuits in Montana from Our children’s Trust:

  1.  Barhaugh v Montana in 2011.
  2.  Held v Montana in 2022-2023.
  3.  Lighthiser v Trump in 2025.

There has been little change in the wording of these climate lawsuits. HvM still has AG Bullock’s name in it even though Montana elected him Governor as of 2012. The science argument in these three climate lawsuits has not changed.

They all claim the government is damaging the physical and mental health of children by allowing human CO2 emissions to continue.

But the schools and parents are damaging their children’s mental and health brainwashing them to believe human carbon emissions are destroying the planet.

The fundamental science issue in all climate lawsuits is whether these unstated hypotheses are true or false:

(1)   Human CO2 causes all the CO2 increase above 280 ppm.

(2)   This CO2 increase causes global warming.

(3)   This global warming causes the plaintiffs claimed damages.

The plaintiffs assume these three hypotheses are true, and they will admit it in court. Otherwise, they would have no basis for their claims.

To prevail, the defense needs to prove only one of these hypotheses is false. In fact, it is easy to prove all three hypotheses are false in a court of law.

Here’s a critical point that few people understand:

The scientific method says it is impossible to prove a hypothesis is true so the alarmists cannot prove these hypotheses are true. The plaintiffs have the burden of proof.

However, we can prove these hypotheses are false by showing they make one false prediction or contradiction with data. This is the key to science.

This is what parents and teachers and media should be teaching the kids.

1.      Barhaugh v. Montana

Barhaugh v. Montana: Petition for Original Jurisdiction, Montana Supreme Court, 2011, was the first climate lawsuit in Montana.

To justify its petition to the Montana Supreme Court, BvM says on page 5:

  • “Through the normal litigation and appeals process, this issue would likely take a minimum of two to three years just to reach this Court, in contrast to the average 60 days needed to resolve original proceedings.
  • “Considering the scientific evidence cited by the Respondent, there is not enough time to effectively arrest the effect of human-caused climate change unless immediate action is taken.”
  • “Climatological “tipping points” lie directly ahead and drive the urgency of taking action:
  • “The further we look into the future, the worse the costs of inaction will become. The longer we do nothing, the greater the risks of an irreversible climate catastrophe, such as a massive rise in sea levels, which could make the world unable to support anything like the current levels of population and economic activity. The costs and risks of inaction are overwhelmingly worse than the moderate and manageable costs of an immediate effort to reduce carbon emissions.”

Barhaugh v. Montana justified its petition to the Montana Supreme Court by predicting an irreversible climatological “tipping point” would occur in the next three years.

The Petition is based upon its assumption that the three unstated climate hypotheses are true. Assuming these hypotheses are true, the plaintiffs claimed certain damages. But all their claims are based on their assumption that their three hypotheses above are true.

The Intervention led by Dr. Edwin X Berry of Bigfork, Montana, prevented the Montana Supreme Court from ruling in favor of the Petition.

Berry’s Intervenors presented evidence that contradicted the Petition’s assumptions.

Their evidence constrained Montana Attorney General Bullock’s reply to the Court because he could not go on record disputing the Intervenors’ evidence that the Petitioners’ claims about climate science may not be true.

Montana AG Bullock wrote:

  • This disputed record is just one example of the factual determinations this Court would need to make to rule for Petitioners.
  • In addition, it would need to address, among other issues, the current state of climate change science; the role of Montana in the global problem of climate change; how emissions created in Montana ultimately affect Montana’s climate; whether the benefits of energy production must be balanced against the potential harm of climate change; and the concrete limits, if any, of the alleged “affirmative duty.”

The Montana Supreme Court ruled:

  • As the State points out, the petition incorporates factual claims such as that the State “has been prevented by the Legislature from taking any action to regulate [greenhouse gas] emissions.”
  • The State posits that the relief requested by Petitioners would require numerous other factual determinations, such as the role of Montana in the global problem of climate change and how emissions created in Montana ultimately affect Montana’s climate.
  • This Court is ill-equipped to resolve the factual assertions presented by Petitioners. We further conclude that Petitioners have not established urgency or emergency factors that would preclude litigation in a trial court followed by the normal appeal process.

The court could not determine whether the Petitioners or the Intervenors were correct about climate because, in the court’s view, there is no scientific consensus that is sufficiently well-settled to decide the case as a matter of law.

The Court rejected the Barhaugh v. Montana Petition.

Quentin Rhoades, Attorney for the Intervenors, wrote that the Montana Supreme Court ruled against the Petitioners because,

  • “There is no scientific consensus that is sufficiently well-settled to allow a court to decide the case purely as a matter of law.

Rhoades concluded,

  • “This establishes once and for all, at least as far as Montana law is concerned, climate science is decidedly not settled.
  • “And not only is it the highest court of a sovereign state, but it ruled that there is no scientific consensus that is sufficiently well-settled to allow for them to decide the case purely as a matter of law.” 

2.      Held v Montana

Montana AG Knudsen should have dismissed Held v Montana based on the now-proven-false climate prediction of Barhaugh v. Montana and the Montana Supreme Court ruling.

The Montana Supreme Court ruled in 2011,

  • “There is no scientific consensus that is sufficiently well-settled to allow a court to decide the case purely as a matter of law.”

Consensus has no bearing on scientific truth. Montana’s AG Knudsen should have known this because all trial lawyers learn it.

Republican AG Knudson should have argued that consensus proves nothing in science. The only relevant proof in science is proof that a hypothesis is false.

Yet AG Knudsen stipulated “consensus” was valid at the beginning of the HvM trial:

  • “for the purposes of trial, there is a scientific consensus that earth is warming as a direct result of human GHG emissions, primarily from the burning of fossil fuels.”

AG Knudsen’s “consensus” stipulation contradicted the Montana Supreme Court.

AG Knudsen’s climate stipulation put him to the left of former Democrat AG Bullock.

On 9/16/2025, Matthew Brown, of the lying Associated Press, wrote about HvM:

  • Young climate activists and their attorneys who won a landmark global warming trial against the state of Montana are trying to convince a federal judge to block President Donald Trump’s executive orders promoting fossil fuels.

No, they did not “win.” Montana AG Knudsen purposely LOST Held v Montana as Montana WEF man ordered him to do.

Knudsen produced NO defense, NO relevant expert witness, and NO challenge to the plaintiffs’ expert witness claims. He laid on the grass and let the opposition trample on Montana.

Knudsen’s purposeful loss of HvM is the worst betrayal by an elected official of the people who voted for him that I have ever witnessed.

3.    Lighthiser v Trump

Lighthiser v. Trump uses the same bad science as Barhaugh v. Montana and Held v Montana.

On September 17, 2025, I traveled to Missoula and sat in on part of the Lighthiser v Trump trial. In my view, Trump’s attorney made good arguments to dismiss LvT. Now, we wait for the judge to decide whether to dismiss LvT.

If LvT continues, I encourage Trump’s attorney to use the arguments that I describe in my other articles to prove hypotheses (1), (2), and (3) are false. They are easy proofs to make in court.

If the LvT trial continues, Trump’s attorney should plan to prove hypotheses (1) and (2) are false and as a bonus prove that (3) is also false. This defeat would remove the influence of the climate fraud on politics.

Comment:

September 17 and 18, 2025, was a two-day injunction hearing in the case of Lighthiser v. Trump, in the Federal District of Montana Butte Division.  While federal Judge Dana Christensen listened to a few more of the plaintiffs’ witnesses and closing arguments, he was mulling over a few difficult legal questions regarding the plaintiffs’ injunction request. [Source: Missoula Current]

“In your motion, it says you want a preliminary injunction from me prohibiting the defendants from implementing these three orders. What exactly does that look like? I enjoin them, and what else do I do?” Christensen asked plaintiffs’ attorney Julia Olson during her closing statement. “Let’s assume these defendants elect to continue to implement policy favoring fossil fuels regardless of what I say. What will I do then?”

Olson said the defense attorneys hadn’t contested the statement that the central purpose of the executive orders is unleashing fossil fuels. But in his closing statement for the defense, DOJ attorney Michael Sawyer said that wasn’t the only thing the plaintiffs had to show. They have to prove they have standing by showing how they’re harmed by the executive orders and how that harm might be relieved by an injunction and eventually a ruling. That last part, known as redressability, was perplexing Christensen, and Sawyer weighed in, saying such an “unprecedented” injunction would be too difficult to police.

“If there were to be a preliminary injunction, there would be numerous requests back here. Every time an agency action is issued that plaintiffs didn’t like, that they thought was too friendly to fossil fuels, they’d be back here again,” Sawyer said. “What we have here is hundreds of lawsuits packed into one.”

The Defendants Brief in Opposition to Plantiffs’ Motion for Preliminary Injunction is here.

In addition to the AG Montana and US DOJ, the submission was joined by AGs from:

Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Texas, Utah, West Virginia, Wyoming, and Guam

 

Alarmists Fail to Refute Realistic Climate Report

Posted on by Ron Clutz

They shoot, they miss, we score.  David Wojick reports on the laughable failure of alarmists in his CFACT article Attack on DOE Climate Report is a comedy of criticism.  Excerpts in italics with my bolds and added images.

The DOE science report saying the impact of CO2 on climate is exaggerated was quickly followed by a massive alarmist report. The alarmist report claimed to refute the DOE report, and the press dutifully reported it doing that.

On close inspection, I find this claim to be not even close to true. In fact, it looks laughable. Mind you, this is a preliminary finding, as the two reports together run about 600 pages. I just took what is arguably the key DOE chapter and compared the two reports on that.

This is the chapter on CO2 sensitivity, which is how much warming will occur (in theory) if the atmospheric concentration doubled. It is a convenient metric that is widely used to assess the potential adverse impact, if any, of increasing CO2.

I first looked at the DOE report, then at the alarmist report, anxious to see how they claimed to falsify the DOE version. What I found instead was that they did not disagree with a single thing the DOE report said. No falsification, no refutation, not even a simple disagreement. Nothing! I could not stop laughing.

On reflection, this is not surprising, because what the DOE report says is simple and well known. They point out that:

♦  the range of sensitivity estimates is getting bigger, not smaller;
♦  some of the models have gotten so hot that the IPCC (Intergovernmental Panel on Climate Change)        no longer accepts their results; that
♦  observation-based estimates are a lot lower than the model estimates; and that
♦  sensitivity could be lower than the IPCC suggests.

Figure 8: Warming in the tropical troposphere according to the CMIP6 models. Trends 1979–2014 (except the rightmost model, which is to 2007), for 20°N–20°S, 300–200 hPa.

There is lots of criticism in the alarmist report to be sure, but it is all editorial, not scientific. Basically, the alarmists wish the DOE report said something else — which is no surprise. They say the report “misrepresents” the science (because it is not alarmist), even though everything it says is true.

They list six specific criticisms. These six are scientifically irrelevant, but some are actually wrong. For example, they say the DOE report ignores that there are multiple lines of evidence, when in fact the chapter begins with a discussion of that very fact.

More deeply, they say the report ignores Transient Sensitivity (decades) in favor of Equilibrium Sensitivity (centuries). This is astoundingly wrong, because the chapter finishes with a section making the point that Transient Sensitivity is both better and much lower than Equilibrium Sensitivity. It is a primary point of the chapter.

In both cases, “ignores” is their word, not mine, and clearly wrong. Conversely, they also attribute claims to the DOE report that are not made. Assuming things not stated is a common tendency among those who disagree.

The alarmist report is grandly titled “Climate Experts’ Review of the DOE Climate Working Group Report” and is available here

The DOE report – “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate” – to be found here. 

The alarmist site proudly lists some of the ridiculous press coverage it received. For example:

“85 climate scientists refute Trump administration report downplaying climate change” (The Hill)

“‘Not scientifically credible’: Scientists repudiate Trump administration climate report” (LA Times)

“Climate scientists file a public, point-by-point rebuttal of Trump admin report casting doubt on climate change” (CNN)

This is alarmist nonsense personified, a perfect example of why
the EPA Endangerment Finding should be revoked. It’s all hype.

See Also:

DOE Climate Team: Twelve Keys in Assessing Climate Change

Nature Study Rigged to Shakedown Big and Little Oil

Posted on by Ron Clutz

in this video, John Robson deconstructs the recent attempt to indict hydrocarbon fuel producers and deprive the world of 80% of the primary energy it needs.  The transcript is in italics with my bolds and added images.

This just in. Canadian companies convicted of burning up planet after show trial. Hydrocarbon bureaucrats sentenced to economic death. As you see, this breaking news caught me on the road here in this hotel. But somebody has to say something. So for the climate discussion nexus, I’m John Robson, and this is our quick reaction response to the pseudoscientific claim that Canadian companies are destroying the earth a bit.

And that response is that this court has no legitimacy at all. What it’s doing is no more science than what Lysenko did. It’s politics in a wig and ugly politics at that. According to a media friendly study in Nature, complete with its own lurid press release, sorry, news article:

The weather attribution wizards have nailed not just human CO2, but yes, individual firms for causing bad weather, and they shall be sued into extinction. After all, this new weather attribution was invented to bypass the tedious necessity of detecting trends in weather before explaining them, for the very purpose not to facilitate understanding, but to facilitate lawsuits.

As Roger Pielke Jr. recently growled while examining a hatchet job on the US Department of Energy skeptical red team climate report, he said, quote, “In my areas of expertise, he had found numerous statements that were simply false. among them that world weather attribution was not created with litigation in mind.”And how does he know that that claim is false? Because he did actual research, including finding a quotation from WWA’s chief scientist, Fredericke Otto:

Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.”

Of course, it was. And here we go. As the Nature propaganda said:

Legal experts say it’s a line of evidence that could feed into climate litigation that focuses on specific events such as the 2021 heatwave that hammered the US Pacific Northwest in 2021. Already, a county government in Oregon has filed a 52 billion US civil lawsuit against fossil fuel companies for contributing to that event.

So, it’s revealing, and not in a good way, that the Nature Study itself credits upfront “approaches promoted by the World Weather Attribution (WWA) initiative and other Methods.”

Alarmists don’t love Weather Attribution because it conducts fair trials. They love it because it convicts everybody with roughly the subtlety of Andrey Vyshinsky or Lavrentiy Beria. But it is not science. As Patrick Brown pointed out this January, their tricks for stacking the jury box include, in this case, in order to attribute droughts to human evil and folly, they overwhelmingly studied places where drought had increased, even though globally there were more places where it decreased. You know, just in case their models let them down, but they’re not likely to. [See Beware Claims Attributing Extreme Events to Hydrocarbons]

As we noted in June, dizzy with success, the fellow travelers at CNN touted a study where:

 “Using a combination of scientific theory, modern observations, and multiple sophisticated computer models, researchers found a clear signal of human-caused climate change was likely discernable with high confidence as early as 1885.”

That is before the invention of the internal combustion automobile. Now, the obvious implication here, and the correct one, is that these models would find such a signal anywhere because we’re told that in 1885, atmospheric CO2 was around 293 parts per million, just a whisker above the 280 parts per million that alarmists wrongly believe was constant in pre-industrial times. That very small change couldn’t possibly have measurably affected the weather. Such a fluctuation is very obviously noise, not signal. Especially when it’s coming from ice cores whose bubbles take decades or even centuries to seal.

Yet the source here tells us that in 1885 it was 293.3 parts per million.  And this mathiness looks impressive, but it’s actually another key warning sign that something that is not science is lurching about in a stolen lab code. Real science deals in uncertainties. It shows error bars. Fake science bludgeons the public with spurious decimal places. According to the CBC’s credulous take:

“I was surprised that even the smallest carbon majors were actually very substantially contributing to the probability of the heat waves, said Yan Quilkai, a climate scientist at ETHZurich, who led the study.”

Oh, come now. Surely you suspected your rigged models would convict the defendant of a serious crime. After all, it’s what they’re for. And here we go. The study allegedly found that major oil companies alone caused more than half the supposed 1.3° C warming since pre-industrial times. And that of that share, Canadian companies caused 0.01°C.

I mean, one might retort, De minimis non curat lex ( The law does not concern itself about trifles.) if not educated in a government school, but instead in Latin or in sound constitutional and legal principles. Or you might say, get the heck out of my lab if you’ve been educated in science because there is no way, no way at all that 0.01 out of 1.30 is signal and not noise here.

Now to his credit or that of the shattered remains of his conscience, nature’s Jeff Tollefson does admit that:

“despite the eyepopping estimates for responsibilities allocated to individual carbon majors, the uncertainties remain high in many instances in large part because the most extreme heat waves are statistically rare.”

Yeah, indeed they’re so rare that there’s no statistically sound way of determining how likely they are. As we pointed out in our turning down the heat waves fact check video with regard to that 2021 Pacific Northwest heat dome that the alarmists so love:

“The heatwave could be viewed as virtually impossible without global warming. But it was virtually impossible with it as well. Sometimes weird things happen.”

What’s more, World Weather Attribution’s gleeful attribution of it to humans and our carbon original sin was eventually submitted to a serious journal and so rubbished by one of the reviewers that they had to add a bunch of disclaimers saying that of course they couldn’t really know. But did it dent their popularity or their self-confidence? Hooha. This study in Nature says,  “The median estimate indicates that climate change has also increased the probability of heat waves by more than 10,000.” 10,000 what? we ask. Percent? Times?

But it gets worse because this kind of talk suggests that they know how common and intense heat waves were around 1850, and how common and intense they are now. But they don’t. They have no idea. There weren’t systematic measurements of daily temperature in most of the world even into the mid 20th century. And the proxies when you go further back certainly give no idea how common or intense they were even a century ago, let alone 500 years.

So they’re making it up, then hiding it with decimals, saying in a spreadsheet attached to the study that, for instance, Cenovus Energy alone increased the probability of an early 2009 heatwave in Victoria, New South Wales and Tasmania’s northern provinces by 1.01% and its intensity by, get this, 0.0003°C. Four decimal places. As the Duke of Wellington once said, “If you believe that, you’ll believe anything.”

It’s also anti-scientific to claim to give a change in global temperature to two decimal places over the last 175 years when nobody knows the temperature anywhere to within one decimal place a century ago. And another thing we actually do know that during the Holocene era the earth has cycled regularly between warmer and cooler periods including down from the medieval warm period into the little ice age and back up after 1850.

So at least some of the warming since must by any logical standard have been natural. In which case they’re blaming oil companies alone for more than the entire human contribution. But the attributors duck this absurdity by absurdly assuming that it’s basically all on us. The chutzpah here is astounding. But it’s exactly the kind of thing they do.

And if you use the same warped modeling to assess the shares of some other human activity, you’d dependably get a searing indictment. And in fact, if you used it on all of them, I’ll bet you you’d get over a 100% of that 1.3 degrees C, never mind if whatever smaller share actually wasn’t natural. But they don’t run that kind of test because what they’re doing isn’t science. They’re not seeking truth and testing theories ruthlessly. They’re zealots shrieking about enemies of the people.

They also write:

“with reference to 1850 to 1900, climate change has increased the median intensity of heat waves by 1.36°C over 2000 to 2009, of which 0.44°C is traced back to the 14 top carbon majors and 0.22°C to the 166 others. These contributions correspond respectively to 32% and 16% of the overall effect of climate change.”

And again, it sounds precise, all right, but climate change is a statistical description of changes in long-term weather. It isn’t a causal force. So, they don’t even know what climate change is. And all those double decimals swirling around trying to hypnotize you are a dead giveaway that they’re in over their heads or worse. And it is worse because they also don’t know what science is. They don’t do counterfactuals and consider what extreme events might have been prevented by warming as well as caused by it.

And they’re certainly not comparing known extreme events today with known extreme events in the past. Instead, they take what did happen and sometimes what didn’t, match it against invented scenarios to prove that we caused bad weather. And then they say, “Gotcha.” when the computer Julie says, “Yes, we caused bad weather.” And then they speed dial their lawyer.

That CBC item included the usual guff from the usual suspects, including Naomi Oreskes. It said,

“referring to previous research from her and other experts showing major oil companies knew about the impacts of carbon emissions and the dangers of global warming decades before countries started enacting climate policies.”

Right? Trotsky was a conscious agent of fascism and imperial oil has been trying to incinerate the earth for half a century and now it’s been proved to two decimal places to the satisfaction of people in the media who barely survived grade 10 math. So, while speaking of people not doing science when it is their job, let us also mention people not doing journalism when it is their job.

CTV, for instance, pounced on the supposed study and shrieked, “These Canadian companies among humanity’s biggest carbon emitters study says.” But the study says nothing of the kind. And in fact, nor really does the story, which includes this bit:

“The 14 largest carbon emitters were led by fossil fuel and coal producers from the former Soviet Union and China, followed by oil companies Saudi Aramco, Gasprom, and Exxon Mobile. Together, they made the same contribution to climate change as the remaining 166 entities, according to the study.”

So, Canada’s eight enemies of humanity actually ranked between 70th and 163rd. And together, they supposedly warmed the planet by 0.01°C over nearly two centuries. Which means if they kept at it for another 1750 years, they might warm the place by 0.1° C. And anyone who tells you they can calculate the impact on the weather of such a trivial change is a charlatan and a rogue. And journalists who parrot such claims without any attempt to do basic math, let alone probe how the authors think they know these things, or what other views exist, belong at Pravda, not in free world newspapers.

Now, before concluding, your honor, we wish to say one thing directly to the prisoners currently slumped in the dock or on the lam. The CBC reported that it:  “reached out to several carbon majors mentioned in the story, but they either declined to comment or didn’t respond by publication time.”  Likewise: “Nature also reached out to the following companies for comment on the study’s findings, but did not receive a response. BP, Shell, Chevron, National Iranian Oil Company, and Coal India.” 

And what indeed could they say? The hydrocarbon energy companies have for too long and with too few exceptions followed a strategy of appeasement, confessing on the science and groveling on the policy, endorsing net zero in the hope of being the last one shot. But since everybody gets shot, it was always a terrible plan. And with the execution fast approaching, it’s time to abandon it.

Of course, if you honestly believe that your product is destroying the Earth, you should say so and get the heck out of that line of work. But if you don’t believe it, stand up for yourselves and not just by saying that the other companies are worse. Because these climate fanatics are not going to stop. They plan to destroy you using pseudoscience to win lawfare. They intend to sue you into oblivion. You, the companies that the rest of us rely on to avoid starving and freezing, and then they’re going to wonder why it got dark all of a sudden. And darkness at noon in the lab definitely has something to do with it.

So, please don’t just stand there. Say something.
Plead not guilty because you’re not and they are.

For the climate discussion nexus, I’m John Robson and that’s our quick response to this Nature study indicting oil companies for setting the planet on fire.

Swamp Lawfare Update: Reported Demise of DOE Climate Report Premature

Posted on by Ron Clutz

 

As expected, climatists were aghast at content in the DOE Climate Review, and the usual suspects complained to the court (Massachusetts, no surprise) on a technicality.  The legal maneuvers are twisted, also usual when deployed by wealthy obstructionist pros like EDF (Environmental Defense Fund) and UCS (Union of Concerned Scientists).  After some digging, I found the documentary trail with excerpts highlighted below and links in red to official docs for those interested. Source: Court Listener Environmental Defense Fund, Inc. v. Wright (1:25-cv-12249)

The Complaint 

The Climate Working Group worked in secret for months to produce a report for DOE and EPA that would provide justification for their predetermined goal of rescinding the Endangerment Finding. In May, unbeknownst to the public, the group transmitted its report to EPA, and EPA then relied extensively on the report in preparing its proposal to rescind the Endangerment Finding.

It was not until the same day that EPA released that proposal, July 29, that the existence and work of the group was made public. Secrecy was so important to Defendants that when the New York Times asked one of the group’s members in early July about his role at DOE, the member obscured his work for the group and simply said that he is an “unpaid person who’s available to them if they need it.”

But federal law does not permit agencies to create or rely on such secret, unaccountable groups when engaged in policymaking. In the Federal Advisory Committee Act (FACA), Congress mandated transparency in the establishment and operation of any federal advisory committee, including by requiring that the group’s formation be promptly disclosed and that its meetings, emails, and other records be open to the public. Here, Defendants did not disclose the Climate Working Group’s existence until months after it began working, and not a single meeting or record has been made public other than the group’s report. Defendants also violated FACA’s prohibition on stacking an advisory committee with adherents of only one point of view; the Climate Working Group’s members were all chosen for their skepticism of climate science, and the group does not have a single member that agrees with the consensus of the overwhelming majority of the scientific community on the effects of climate change.

The Environmental Defense Fund and the Union of Concerned Scientists bring this action to enjoin Defendants’ flagrant violations of FACA, to bring transparency to the Climate Working Group’s work to date as the law requires, and to compel Defendants to follow the law if they wish to rely on outside scientific advisors to justify their actions going forward. If DOE and EPA wish to establish an advisory committee for the enormously consequential purposes for which they have put the Climate Working Group to use, they must comply with the rules that Congress has prescribed.

Defendants’ Response

Plaintiffs invoke the Federal Advisory Committee Act (“FACA”), and contend that the Department of Energy (“DOE”) and Secretary Christopher Wright violated its requirements in establishing the now-dissolved DOE Climate Working Group (“CWG”). But the true goal of their lawsuit is not promoting openness and transparency in public decision-making. While Plaintiffs complain that they only recently learned of the CWG’s existence, DOE released its Report publicly weeks ago, and the Government provided opportunities for public comment on the CWG’s work.  Instead, as the introduction to their Complaint makes clear, Plaintiffs’ objective is to delay and prematurely undermine a contemplated future policy decision by a different agency: namely, EPA’s proposed reconsideration of its 2009 greenhouse gas endangerment finding. Their sole hook for that relief is that EPA cited the CWG report—among numerous other sources—in a notice of proposed rulemaking (“NPRM”). That gambit fails at every level. Plaintiffs’ requested relief is foreclosed by Article III, the scope of FACA, and equitable principles.

More broadly, Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, For Summary Judgment or Consolidation Under Rule 65(a)(2), ECF Nos. 15-16, fails for at least three different reasons. First, Plaintiffs fail to establish that they are likely to succeed on the merits, because the CWG is not an entity covered by FACA; the statutory requirements are inapplicable to groups assembled to exchange facts or information with federal officials. In all events, most of Plaintiffs’ claims are now moot due to the CWG’s dissolution.

Second, Plaintiffs have identified no imminent irreparable harm requiring judicial intervention at this early juncture. They face no harm (irreparable or otherwise) from the prospect of ongoing work performed by the CWG because the group has already been dissolved. And EPA’s upcoming September 22, 2025, deadline for public comment on its NPRM poses no harm, because Plaintiffs are free to raise their concerns about the CWG report via public comment. Nor would any alleged harm stemming from an inability to comment be irreparable. Plaintiffs request that this Court ultimately issue declaratory relief finding the CWG unlawful and an injunction preventing Defendants from relying on its work. Either remedy would fully repair any injury suffered by Plaintiffs from the FACA violations they allege if they ultimately prevail on the merits, rendering a preliminary injunction unnecessary.

Third, Plaintiffs have not shown that the balance of the equities or the public interest weighs in their favor. These factors favor allowing the Government to use the information provided by the scientists of the CWG, promoting dialogue based on honest scrutiny and scientific transparency in the public sphere, and not prematurely pretermitting an ongoing rulemaking process. Even if the Court were inclined to grant some relief, the remedies sought by Plaintiffs are overbroad. Even when a FACA violation is proven on the merits, injunctions preventing the use of committee work are a highly disfavored remedy, as declaratory relief can fully remedy all injuries alleged. Plaintiffs have certainly shown no entitlement to such an extraordinary remedy at the preliminary injunction stage. And because the CWG has been dissolved, no practical purpose is served by an order compelling it to comply with FACA’s procedural requirements going forward. Nor is extension of the comment period on EPA’s NPRM warranted or proper. Plaintiffs cannot circumvent the Clean Air Act or APA finality requirements by alleging a FACA violation in order to indefinitely delay a pending rulemaking with which they disagree.

Plaintiffs’ Reply

For months, Defendants brazenly violated the Federal Advisory Committee Act. They constituted the Climate Working Group (CWG) in secret, had it meet in secret to produce a report with advice and recommendations for policymakers, and then provided the report to EPA in secret for use in a proposal to rescind EPA’s Endangerment Finding. Defendants present no serious argument that they did not violate FACA in taking all of these actions. Instead, when these actions were challenged in court, Defendants purported to dissolve the CWG the day before their opposition was due, and in their filing the next day, they argued that the dissolution mooted the case and left the Court powerless to provide relief for their many legal violations.

But the rule of law is not a game of catch me if you can. DOE, EPA, and the CWG violated FACA with every action they took producing and utilizing the CWG Report, and those unlawful actions continue to harm Plaintiffs in myriad ways. Indeed, Defendants do not dispute that the CWG lacked fairly balanced views—including views representative of those held by Plaintiffs—and was subject to inappropriate influence from Secretary Wright. The continued existence and use of the CWG Report produced with these legal infirmities significantly harms Plaintiffs, and there are multiple forms of declaratory, injunctive and Administrative Procedure Act relief that this Court may enter to redress these injuries.

Amicus Brief American Free Enterprise Chamber of Commerce

Amicus writes to explain why censoring the CWG Report in EPA’s ongoing rulemaking is inappropriate and beyond the power of this Court.  The extraordinary request for censorship here should fail for multiple reasons, but AmFree covers five.

First, Plaintiffs lack standing to seek relief against EPA because censoring the study would not redress any cognizable Article III harm. See Nat. Res. Def. Council v. Peña, 147 F.3d 1012, 1020–23 (D.C. Cir. 1998) (so holding). Second, the Clean Air Act strips district courts of power to enjoin EPA’s actions in ongoing Clean Air Act rulemaking proceedings or to control the agency’s rulemaking docket, making courts of appeals (in this case, the D.C. Circuit) the “sole forum” for these disputes. See 42 U.S.C. § 7607(b), (d)(8). Third, censorship remedies are not available under the Administrative Procedure Act (“APA”) or through a writ of mandamus, because such an order does not compel a discrete action required by FACA. Fourth, censoring the government’s use of the CWG Report is punishment that exceeds this Court’s remedial equity jurisdiction. Fifth, Plaintiffs cannot show irreparable harm because they have adequate avenues for judicial relief namely, challenging EPA’s rulemaking record in the D.C. Circuit, after a final rule.

Plaintiffs “are champing at the bit to challenge EPA’s anticipated rule [repealing] carbon dioxide emission[]” standards for new motor vehicles. In re Murray Energy Corp., 788 F.3d 330, 333 (D.C. Cir. 2015) (Kavanaugh, J.). “But courts have never reviewed proposed rules, notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules.” Id. at 335. This Court should not do so here.

What’s Next for CWG

Steven Koonin writes this excerpt in Climate Change Dispatch article

Our report is the first from Washington in years that deviates from the narrative of a climate headed for catastrophe. That these findings surprised many speaks to a governmental failure to communicate climate science accurately to the public.

Reports like ours may draw a lot of anger, but our work accurately portrays important aspects of climate science.

Our work has attracted strong criticism, despite its grounding in established science. Almost 60,000 comments were submitted to the Federal Register during the month after its publication, and the Environmental Defense Fund and Union of Concerned Scientists filed a lawsuit to prevent the Energy Department or Environmental Protection Agency from using the report in decision-making.

Most of these challenges have no scientific backing.

Though scientists supporting the so-called consensus on climate change have organized several serious critiques, these at most add detail and nuance to our findings, without negating the report’s central points.

They still merit a response, which will form the next round in an overdue public debate on the effects of greenhouse gas emissions.

Climate policies must balance the risks of climate change against a response’s costs, efficacy, and collateral effects.

Reports like ours may draw a lot of anger, but our work accurately portrays important aspects of climate science. Acknowledging the facts is essential for informed policy decisions.

Mr. Koonin is a senior fellow at Stanford’s Hoover Institution and the author of “Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters.”

Killer Climate Lawsuit on Shaky Ground

Posted on by Ron Clutz

Washington Free Beacon reports on shaky case to make climate change a killer First-Of-Its-Kind Lawsuit Blaming Oil Companies for Woman’s Heat-Wave Death Failed to Mention Her Heart Disease. Excerpts in italics with my bolds and added images.

‘The diagnosis and likely treatment for it is highly relevant,’
doctor tells Free Beacon

A first-of-its-kind lawsuit accusing some of the nation’s largest oil companies of causing global warming and therefore causing a Washington woman’s 2021 heat-wave death left out one critical detail: she had been diagnosed with heart disease.

Juliana Leon’s death certificate, obtained by the Washington Free Beacon, shows she had been diagnosed with hypertensive cardiovascular disease, a condition that stems from unmanaged high blood pressure and increases the risks of heart failure and sudden cardiac death. The medical examiner for King County, Wash., determined that the condition contributed to her death, meaning it wasn’t the direct cause of death, but made her more vulnerable to it.

The wrongful death lawsuit Leon’s daughter filed earlier this year against oil companies, however, failed to make a single mention of her underlying condition. It instead focused entirely on the direct cause of death: hyperthermia.

The revelation, which has not been reported until now, is relevant because it could explain why Leon succumbed to the high temperatures that hit the Pacific Northwest in June 2021, according to doctors interviewed by the Free Beacon. And it is important too because of the lawsuit’s potentially wide-reaching impact. If successful, the lawsuit could lead to dozens of similar wrongful death suits and even future criminal homicide prosecutions against the oil industry.

The lawsuit—the first instance of a case attempting to put oil companies on the hook for heat-related wrongful death—is part of a coordinated effort nationwide to use the courts to cripple the oil industry and usher in a green energy transition. Activists say such litigation will hold the industry accountable, while critics say it is designed to bankrupt the industry, something that would have devastating economic impacts.

“The main reasons for hyperthermia under these conditions include medications or skin conditions impairing the ability to sweat. People with hypertensive cardiovascular disease are likely to be taking such medicines,” said Jane Orient, the executive director of the Association of American Physicians and Surgeons and a clinical lecturer at the University of Arizona College of Medicine.

“I think the diagnosis and likely treatment for it are highly relevant,” she continued. “A body temperature as high as 110 is extremely unlikely without impairment in the body’s temperature-regulating mechanism, at least under the circumstances here. Most people will have dehydration, but not heat stroke, during a heat wave. This lady likely had both.”

Jeffrey Singer, a senior fellow at the Cato Institute and the founder of a private surgical practice in Arizona, agreed that the diagnosis could be relevant.  Singer told the Free Beacon:

“Having hypertension and its cardiovascular stigmata, depending on severity, might affect a person’s risk of succumbing to hyperthermia. But it’s the hyperthermia that kills,”

Lawyers representing Leon’s estate and daughter did not respond to requests for comment.

Leon died on June 28, 2021, during an extreme heat wave, which ultimately claimed the lives of 100 people in Washington, state data show. According to the wrongful death lawsuit, Leon died in her car after the vehicle’s air conditioning system broke and as outside temperature exceeded 105 degrees Fahrenheit. Her internal temperature rose to 110 degrees Fahrenheit right before she died.

Two weeks earlier, Leon had undergone bariatric surgery, a weight-loss surgery that helps reduce the risk of heart disease and high blood pressure. As a result, she had been on a liquid diet in the two weeks leading up to her death. In fact, Leon died in her car on her drive home from the doctor’s office where she was informed that morning that she may begin to eat soft foods again.

Still, the lawsuit blames seven oil companies for her death, arguing that they knew their products caused global warming decades ago, but continued selling them anyway. The lawsuit states that the 2021 heat wave in the Pacific Northwest wouldn’t have occurred without human-caused global warming.

A study published in the American Meteorological Society’s journal Weather and Forecasting last year found that there is “little evidence” greenhouse gases amplified the heat wave and emphasized that weather forecasts for the event were “highly accurate.” “Global warming may have made a small contribution, but an extreme heat wave, driven by natural variability, would have occurred in any case,” it concluded.  Singer told the Free Beacon:

“You don’t need climate change to have a heat wave. Humans have been experiencing heat spells since the beginning of recorded history,”

The Free Beacon reported last week that an environmental group funded by the powerful Rockefeller Family Fund is quietly steering the wrongful death suit. According to legal filings, Leon’s daughter quietly appointed a climate activist to serve as the agent for her deceased mother’s estate. Those documents were authored by lawyers at the Rockefeller-backed Center for Climate Integrity, a nonprofit leading the coordinated, nationwide plan to “drive divestment” from and “delegitimize” the oil industry through litigation.

Beware Claims Attributing Extreme Events to Hydrocarbons

Posted on by Ron Clutz

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 warming decreases 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 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 by Ron Clutz

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

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 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 cases653.

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.

See Also

Our Weather Extremes Are Customary in History

IPCC Guilty of “Prosecutor’s Fallacy”

How Do We Know Humans Cause Climate Change?

ICJ Issues Biased Advice on Climate Change

Posted on 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 status1346.

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.