Climate Litigation

Advance Briefing for COP29 Baku 2024

Posted on by Ron Clutz

Overview from CFR. COP29 Summit in Baku: What to Expect  Excerpts in italics with my bolds and added images.

Negotiators from across the globe will gather in Baku, Azerbaijan, for the twenty-ninth annual UN climate change conference on November 11. COP29 marks the midpoint of the “COP Presidencies Troika,” a collaborative effort between the United Arab Emirates (UAE, host to COP28) and Brazil (host to COP30 in 2025) aimed at accelerating progress toward the 1.5°C goal. Unlike COP28 in Dubai last year, which hosted a record hundred thousand attendees, COP29 will be smaller, with Baku expected to host around fifty thousand participants. 

The selection of Azerbaijan as the host country has raised concerns about the credibility and integrity of the COP process. COP29 marks the third time a significant fossil fuel-producing country has hosted the conference, and the second time in two years. Azerbaijani President Ilham Aliyev has announced plans to increase gas production in part to satisfy European Union (EU) demands and referred to the country’s oil and gas reserves as “a gift from God.” 

What’s on the Agenda–Three Pledges Are Proposed

Reducing emissions and increasing green energy. The presidency has put forward a series of commitments for investing in renewable energy, such as a Global Energy Storage and Grids Pledge, which aims to enhance energy infrastructure and storage capabilities worldwide, an ambitious Hydrogen Declaration, and a Declaration on Reducing Methane from Organic Waste. With the Green Digital Action Declaration, COP29 leadership seeks to reduce emissions in the information and communication sectors. The agenda, however, makes no direct mention of a transition from fossil fuels.

Building climate resilience. The COP presidency has put forth a climate initiative for farmers and a declaration calling for integrated approaches to combating climate threats to water basins and ecosystems. Additionally, Baku aims to present the Initiative on Human Development for Climate Resilience, which focuses on education, skills, health, and well-being, and the COP29 Multisectoral Actions Pathways (MAP) Declaration that aims to enhance urban climate resilience.  

New climate finance targets. Nations are expected to replace the previous $100 billion annual commitment to developing countries from the 2009 Copenhagen Accord. The new target, known as the New Collective Quantified Goal (NCQG), will be under discussion at November’s COP and is intended to take effect from 2025 onwards. A 2022 report [PDF] by the Independent High-level Expert Group on Climate Finance found that developing countries need around $1 trillion per year by 2025, and $2.4 trillion by 2030 to meet their climate finance needs.  Among the most contentious issues that remain are how much money developed nations will provide, and who should provide climate finance. 

Yes, those are Trillions of US$ they are projecting to spend.

My Comments

Since there is a big push on climate funding, maybe they could get to the bottom of this:

Maybe donors are put off by no one knowing who gets the money and for what it is spent.  And while they are investigating, how about understanding Energy Return on Investment (EROI): you know, the notion that an energy project is worth doing if the energy produced is greater than energy spent. The windmills in the logo at the top reminded me of this:

Why a COP Briefing?

Actually, climate hysteria is like a seasonal sickness.  Each year a contagion of anxiety and fear is created by disinformation going viral in both legacy and social media in the run up to the annual autumnal COP.  Since the climatists have put themselves at the controls of the formidable US federal government, we can expect the public will be hugely hosed with alarms over the next few weeks.  Before the distress signals go full tilt, individuals need to inoculate themselves against the false claims, in order to build some herd immunity against the nonsense the media will promulgate. This post is offered as a means to that end.

Media Climate Hype is a Cover Up

Back in 2015 in the run up to Paris COP, French mathematicians published a thorough critique of the raison d’etre of the whole crusade. They said:

Fighting Global Warming is Absurd, Costly and Pointless.

  • Absurd because of no reliable evidence that anything unusual is happening in our climate.
  • Costly because trillions of dollars are wasted on immature, inefficient technologies that serve only to make cheap, reliable energy expensive and intermittent.
  • Pointless because we do not control the weather anyway.

The prestigious Société de Calcul Mathématique (Society for Mathematical Calculation) issued a detailed 195-page White Paper presenting a blistering point-by-point critique of the key dogmas of global warming. The synopsis with links to the entire document is at COP Briefing for Realists

Even without attending to their documentation, you can tell they are right because all the media climate hype is concentrated against those three points.

Finding: Nothing unusual is happening with our weather and climate.
Hype: Every metric or weather event is “unprecedented,” or “worse than we thought.”

Finding: Proposed solutions will cost many trillions of dollars for little effect or benefit.
Hype: Zero carbon will lead the world to do the right thing.  Anyway, the planet must be saved at any cost.

Finding: Nature operates without caring what humans do or think.
Hype: Any destructive natural event is blamed on humans burning fossil fuels.

How the Media Throws Up Flak to Defend False Suppositions

The Absurd Media:  Climate is Dangerous Today, Yesterday It was Ideal.

Billions of dollars have been spent researching any and all negative effects from a warming world: Everything from Acne to Zika virus.  A recent Climate Report repeats the usual litany of calamities to be feared and avoided by submitting to IPCC demands. The evidence does not support these claims. An example:

 It is scientifically established that human activities produce GHG emissions, which accumulate in the atmosphere and the oceans, resulting in warming of Earth’s surface and the oceans, acidification of the oceans, increased variability of climate, with a higher incidence of extreme weather events, and other changes in the climate.

Moreover, leading experts believe that there is already more than enough excess heat in the climate system to do severe damage and that 2C of warming would have very significant adverse effects, including resulting in multi-meter sea level rise.

Experts have observed an increased incidence of climate-related extreme weather events, including increased frequency and intensity of extreme heat and heavy precipitation events and more severe droughts and associated heatwaves. Experts have also observed an increased incidence of large forest fires; and reduced snowpack affecting water resources in the western U.S. The most recent National Climate Assessment projects these climate impacts will continue to worsen in the future as global temperatures increase.

Alarming Weather and Wildfires

But: Weather is not more extreme.


And Wildfires were worse in the past.
But: Sea Level Rise is not accelerating.

post-glacial_sea_level

Litany of Changes

Seven of the ten hottest years on record have occurred within the last decade; wildfires are at an all-time high, while Arctic Sea ice is rapidly diminishing.

We are seeing one-in-a-thousand-year floods with astonishing frequency.

When it rains really hard, it’s harder than ever.

We’re seeing glaciers melting, sea level rising.

The length and the intensity of heatwaves has gone up dramatically.

Plants and trees are flowering earlier in the year. Birds are moving polewards.

We’re seeing more intense storms.

But: Arctic Ice has not declined since 2007.

But: All of these are within the range of past variability.In fact our climate is remarkably stable, compared to the range of daily temperatures during a year where I live.

And many aspects follow quasi-60 year cycles.

The Impractical Media:  Money is No Object in Saving the Planet.

Here it is blithely assumed that the UN can rule the seas to stop rising, heat waves to cease, and Arctic ice to grow (though why we would want that is debatable).  All this will be achieved by leaving fossil fuels in the ground and powering civilization with windmills and solar panels.  While admitting that our way of life depends on fossil fuels, they ignore the inadequacy of renewable energy sources at their present immaturity.

An Example:
The choice between incurring manageable costs now and the incalculable, perhaps even irreparable, burden Youth Plaintiffs and Affected Children will face if Defendants fail to rapidly transition to a non-fossil fuel economy is clear. While the full costs of the climate damages that would result from maintaining a fossil fuel-based economy may be incalculable, there is already ample evidence concerning the lower bound of such costs, and with these minimum estimates, it is already clear that the cost of transitioning to a low/no carbon economy are far less than the benefits of such a transition. No rational calculus could come to an alternative conclusion. Defendants must act with all deliberate speed and immediately cease the subsidization of fossil fuels and any new fossil fuel projects, and implement policies to rapidly transition the U.S. economy away from fossil fuels.

But CO2 relation to Temperature is Inconsistent.

But: The planet is greener because of rising CO2.

But: Modern nations (G20) depend on fossil fuels for nearly 90% of their energy.

But: Renewables are not ready for prime time.

People need to know that adding renewables to an electrical grid presents both technical and economic challenges.  Experience shows that adding intermittent power more than 10% of the baseload makes precarious the reliability of the supply.  South Australia is demonstrating this with a series of blackouts when the grid cannot be balanced.  Germany got to a higher % by dumping its excess renewable generation onto neighboring countries until the EU finally woke up and stopped them. Texas got up to 29% by dumping onto neighboring states, and some like Georgia are having problems.

But more dangerous is the way renewables destroy the economics of electrical power.  Seasoned energy analyst Gail Tverberg writes:

In fact, I have come to the rather astounding conclusion that even if wind turbines and solar PV could be built at zero cost, it would not make sense to continue to add them to the electric grid in the absence of very much better and cheaper electricity storage than we have today. There are too many costs outside building the devices themselves. It is these secondary costs that are problematic. Also, the presence of intermittent electricity disrupts competitive prices, leading to electricity prices that are far too low for other electricity providers, including those providing electricity using nuclear or natural gas. The tiny contribution of wind and solar to grid electricity cannot make up for the loss of more traditional electricity sources due to low prices.

These issues are discussed in more detail in the post Climateers Tilting at Windmills

The Irrational Media:  Whatever Happens in Nature is Our Fault.

An Example:

Other potential examples include agricultural losses. Whether or not insurance
reimburses farmers for their crops, there can be food shortages that lead to higher food
prices (that will be borne by consumers, that is, Youth Plaintiffs and Affected Children).
There is a further risk that as our climate and land use pattern changes, disease vectors
may also move (e.g., diseases formerly only in tropical climates move northward).36 This
could lead to material increases in public health costs

But: Actual climate zones are local and regional in scope, and they show little boundary change.

But: Ice cores show that it was warmer in the past, not due to humans.

The hype is produced by computer programs designed to frighten and distract children and the uninformed.  For example, there was mention above of “multi-meter” sea level rise.  It is all done with computer models.  For example, below is San Francisco.  More at USCS Warnings of Coastal Floodings

In addition, there is no mention that GCMs projections are running about twice as hot as observations.

Omitted is the fact GCMs correctly replicate tropospheric temperature observations only when CO2 warming is turned off.

Figure 5. Simplification of IPCC AR5 shown above in Fig. 4. The colored lines represent the range of results for the models and observations. The trends here represent trends at different levels of the tropical atmosphere from the surface up to 50,000 ft. The gray lines are the bounds for the range of observations, the blue for the range of IPCC model results without extra GHGs and the red for IPCC model results with extra GHGs.The key point displayed is the lack of overlap between the GHG model results (red) and the observations (gray). The nonGHG model runs (blue) overlap the observations almost completely.

In the effort to proclaim scientific certainty, neither the media nor IPCC discuss the lack of warming since the 1998 El Nino, despite two additional El Ninos in 2010 and 2016.

Further they exclude comparisons between fossil fuel consumption and temperature changes. The legal methodology for discerning causation regarding work environments or medicine side effects insists that the correlation be strong and consistent over time, and there be no confounding additional factors. As long as there is another equally or more likely explanation for a set of facts, the claimed causation is unproven. Such is the null hypothesis in legal terms: Things happen for many reasons unless you can prove one reason is dominant.

Finally, advocates and IPCC are picking on the wrong molecule. The climate is controlled not by CO2 but by H20. Oceans make climate through the massive movement of energy involved in water’s phase changes from solid to liquid to gas and back again. From those heat transfers come all that we call weather and climate: Clouds, Snow, Rain, Winds, and Storms.

Esteemed climate scientist Richard Lindzen ended a very fine recent presentation with this description of the climate system:

I haven’t spent much time on the details of the science, but there is one thing that should spark skepticism in any intelligent reader. The system we are looking at consists in two turbulent fluids interacting with each other. They are on a rotating planet that is differentially heated by the sun. A vital constituent of the atmospheric component is water in the liquid, solid and vapor phases, and the changes in phase have vast energetic ramifications. The energy budget of this system involves the absorption and reemission of about 200 watts per square meter. Doubling CO2 involves a 2% perturbation to this budget. So do minor changes in clouds and other features, and such changes are common. In this complex multifactor system, what is the likelihood of the climate (which, itself, consists in many variables and not just globally averaged temperature anomaly) is controlled by this 2% perturbation in a single variable? Believing this is pretty close to believing in magic. Instead, you are told that it is believing in ‘science.’ Such a claim should be a tip-off that something is amiss. After all, science is a mode of inquiry rather than a belief structure.

Summary:  From this we learn three things:

Climate warms and cools without any help from humans.

Warming is good and cooling is bad.

The hypothetical warming from CO2 would be a good thing.

 

 

Legal Fight to Stop EPA Rule Closing Power Plants

Posted on by Ron Clutz

Update on ominous overreach by Biden/Harris regime comes from Just the News  While the SCOTUS denies request to block EPA power plant rule, challengers vow to continue fight.  As explained below, EPA intends to require expensive and impractical CO2 Capture and Storage on all power plants using carbon fuels, thereby forcing shutdowns. Excerpts in italics with my bolds and added images,

Analysts say that if the rule is implemented, more than 5 million
people could experience blackouts, some lasting for 41 hours.

The Supreme Court ruled against a bid to block the EPA’s power plant rule while legal challenges make their way through the courts, but West Virginia, which is leading the coalition of states challenging the rule, vows the fight isn’t over. 

In a brief order, Justices Brett Kavanaugh and Neil Gorsuch said that the applicants “have shown a strong likelihood of success on the merits as to at least some of the challenges to the” EPA’s rule.

However, the justices explained, the stay wasn’t needed because compliance requirements wouldn’t begin until June 2025, which means the applicants wouldn’t “suffer irreparable harm” before the Court of Appeals for the D.C. Circuit decides the merits of the case. Injunctive relief, such as sought here, requires clear and convincing proof that the harm be immediate and irreparable.

The lower court is expediting the case, the justices noted, meaning it would be resolved in the court’s current term. Afterward, the case would still have time to return to the Supreme Court, if it’s warranted. 

The EPA rule, which was finalized in April, requires that coal-fired power plants be fitted with carbon capture technology controlling 90% of their carbon dioxide emissions by 2039, and new gas-fired power plants will need to do the same starting in 2035, depending on the amount of runtime they have.

Energy analysts Isaac Orr and Mitch Rolling revealed that the EPA failed to do a proper analysis of the impacts of the rule, and if implemented, over 5 million people will experience blackouts, some lasting for 41 hours. While the EPA has defended the rule and argues that carbon capture is “well proven,” its own modeling showed it expected only one coal plant and no gas plants to be fitted with the technology as far out as 2055.

Two dozen states led by West Virginia filed a lawsuit against the EPA in May, arguing that the agency exceeded its authority with the rule. Utilities and industry groups also filed legal challenges to the rule. In July, the U.S. Court of Appeals for the D.C. Circuit denied the parties’ requests to block the rules while the courts considered the challenges, and the court ruled the applicants wouldn’t succeed on the merits of their case.

In court filings, the EPA noted that the lower court ruled the applicants are unlikely to succeed in arguing the agency exceeded its authority, and it stood by the rule and its carbon capture requirements, arguing that the technology has been “adequately demonstrated.”

West Virginia Attorney General Patrick Morrisey said in a
statement on the high court’s ruling that the fight isn’t over.

“This is not the end of this case: we will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world,” Morrisey said.

In 2022, the Supreme Court had sided with West Virginia and other states in a challenge to the Obama-era “Clean Power Plan.” Morrisey said that the high court had made clear limits to what the EPA can do, and the Biden administration’s “green new deal agenda” is ignoring those limits.

“This rule is yet another attempt of unelected bureaucrats to push something the law doesn’t allow,” Morrisey said.

Indiana, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming joined the application to the Supreme Court.

SCOTUS Must Stop Climate Extortion Lawfare

Posted on by Ron Clutz

Jon Decker explains what’s at stake in the case awaiting US Supreme Court consideration.  His Real Clear Markets article is The Supreme Court Must Stop Climate Extortion Schemes.  Excerpts in itallics with my bolds and added images.

Chevron recently announced that it is moving out of California after almost a century and a half in the state. No wonder, since Sacramento sued the company, along with a number of other oil companies, for allegedly deceptive practices.

In their war on energy, progressive politicians increasingly turn to lawfare as another scheme to extract funds from productive citizens and dramatically reshape the economy. In the coming weeks, we’ll learn if the Supreme Court will stand up to them.

The critical case is Sunoco v. Honolulu, currently pending before SCOTUS. Honolulu is suing several oil companies, alleging their fossil fuel production caused significant damage to the city through rising sea levels and other climate-related infrastructure issues.

That these companies are being sued not for specific instances of purported environmental harm, but instead under “public nuisance” and “consumer fraud” laws for an alleged “multi-decadal campaign of deception” about the nature of their products is crucial. That’s because it lets progressive cities and states get around long-standing legal doctrine that kept climate cases in federal courts, where defendants are somewhat likelier to get a fair hearing.

Knowing that federal environmental law presents a more difficult path for litigation, activists instead went “venue shopping” with their climate agenda to deep blue states, knowing that a multi-jurisdictional assault would be unworkable, and potentially fatal, for American energy companies. The progressive politicians who support this approach not only see a boost for their careers and fundraising goals, but a potentially massive source of new government revenue.

Because Honolulu, like a spate of other lawsuits driven by ambitious progressive state AGs and prosecutors, models its assault on energy companies on the 90s tobacco wars. And they are unsurprisingly seeking an eye-watering settlement similar to what the tobacco industry was forced to pay (dollars that still flow to the government to this day).

But you don’t have to be a fossil fuel corporate booster or a climate change skeptic to recognize that these paydays will come at the expense of ordinary consumers and taxpayers, and of the economy as a whole.

Fossil fuels are ubiquitous in every sector, from agriculture and clothing to steel production, electricity, heating, and transportation. If this lawfare succeeds then every single one of these products and services—anything that takes energy as an input—becomes more expensive.

There’s also a kind of incoherence to the idea that a small handful of companies are alone to blame for perceived climate ills. What about the thousands of companies worldwide that are involved in the exploration, production, and distribution of fossil fuels – or the millions of companies that use fossil fuels to make their own goods and perform their services? That’s not even to mention the fact that the same few energy companies now being sued also play a critical role in the U.S. leading the world in CO2 emission reductions, through greater adoption of natural gas. How do the companies spearheading the natural gas renaissance figure into the supposed “deception” at work here?

The stakes here remind us that judges—and therefore elections—matter. Hawaii Supreme Court Chief Justice Mark Recktenwald, who ruled in favor of Honolulu and thereby triggered SCOTUS review, has been associated with the far-left Environmental Law Institute’s (ELI) Climate Judiciary Project, a group that “trains” and “educates” thousands of judges and government lawyers across the country to deliver legal outcomes favored by progressives.

The Supreme Court may be the last line of defense against
fringe activists dictating energy policy for the rest of us.

But of course, SCOTUS itself is in the crosshairs of left-wing judicial scheming, with top Democrats, including presidential nominee Kamala Harris, threatening to pack the Supreme Court if elected. No doubt with judges in the Mark Recktenwald mode.

If Honolulu succeeds in its case, and progressives in their larger campaign of lawfare, Americans can say Aloha to higher prices.

Postscript on Arguing Deception in These Cases

As noted above, the rationale for filing these cases in state rather than federal courts depends on claiming consumer fraud, I.e. oil companies deceived the public while knowing about their damaging energy products.  A good rebuttal against the “Exxon Knew” fiction is provided (with my bolds) by Randal Utech at Master Resource:

To say that Exxon knew the truth back in the early 80s is a laughable fallacy. Effectively they built a primitive model that is characteristically similar to the erroneous modern climate models of today.

Fundamentally their work is based on the poorly understood climate sensitivity (ECS) derived from radiative convective models and GCM models. To their credit, they actually acknowledged the high degree of uncertainty in these estimations. Today, even Hausfather (2022 vs 2019) is beginning to understand the climate sensitivity (ECS) is too high. CMIP6 is running still even hotter than CMIP5 and using ECS of 3 to 5° C rather than ~ 1.2° C as highlighted in Nick Lewis’s 2022 study.

CMIP6 should have been better because it incorporated solar particle forcing (Matthes et. al.) and as they incorporate more elements of natural forcing (an active area of research as we still do not have a predictive theory for climate), the effect is highlighting more underlying problems with the models.

However, Exxon investigators fell into the same trap that climate modelers of today where they build the models to history match temperatures and then wow, because they can create a model that appears to history match temperatures, they assume it is telling them something. Truth? Anyone can create a model to do this, but it would never mean the model is correct. While the models today are much more complex, they are based on a complex set of non-linear equations, and the understanding of the various sources of nonlineararity is poor. This opens up wide degrees of uncertainty yet wide opportunity for tuning. Furthermore, natural forcing is undercharacterized and deemed inconsequential.

The contrived sense of accomplishment in history matching is spurious correlation for an infinitesimally small period of time. Using Exxon’s internal analysis of CO2 climate forcing is little more than a propaganda tool. Current climate models, much more sophisticated, face the same problem of unknown, false causality.

See Background Post:

19 State AGs Ask Supremes to Block Climate Lawsuits

Good News: SEC’s ESG Plans Thwarted with Biden Term Ending

Posted on by Ron Clutz

The news comes from Bloomberg Law article SEC’s Gensler Sees ESG Plans Thwarted as Biden’s Term Nears End. Excerpts in italics with my bolds and added images.

SEC Chair Gary Gensler started out with big plans on ESG.

  • Gensler seeks board diversity, workforce, ESG fund disclosures
  • Agency unlikely to finalize ESG regulations before January

The Democrat arrived at the Securities and Exchange Commission in 2021, after George Floyd’s murder in 2020 and President Joe Biden’s election that year fueled interest in environmental, social and governance investing. Gensler wanted public companies to report details about their climate change risks, workforce management and board members’ diversity.

He also sought new rules to fight greenwashing and other misleading ESG claims by investment funds.

Almost four years later, most of those major ESG regulations are unfinished, and they’ll likely remain so in the less than five months Gensler may have left as chair. A conservative-led backlash against ESG and federal agency authority has fueled challenges in and out of court to corporate greenhouse gas emissions reporting rules and other SEC actions, helping blunt the commission’s power.

The climate rules—Gensler’s marquee ESG initiative—were watered down following intense industry pushback, then paused altogether after business groups, Republican attorneys general and others sued.

“It’s clear the commission leadership is exhausted and feeling buffeted by the courts, Congress and industry complaints,” said Tyler Gellasch, who was a counsel to former Democratic SEC Commissioner Kara Stein and is president and CEO of investor advocacy group Healthy Markets Association.

The SEC has finalized more than 40 rules since 2021, “making our capital markets more efficient, transparent, and resilient,” an agency spokesperson said in a statement to Bloomberg Law.

The spokesperson declined to comment on the status of the agency’s pending ESG rules, beyond pointing to the commission’s most recent regulatory agenda.

Long-standing plans to require human capital and board diversity disclosures from companies have yet to yield formal proposals. Final rules concerning ESG-focused funds still are pending, and even if the SEC adopts them before January as the agenda suggests, a Republican-controlled Congress and White House may have the power to quickly scrap them under the Congressional Review Act.

Unlike the workforce and board diversity rules that have yet to be proposed, investment fund regulations concerning ESG have already been drafted and are targeted for completion in October, according to the SEC’s latest agenda. ESG funds would have to disclose their portfolio companies’ emissions and report on their ESG strategies.

The SEC proposed the regulations in May 2022, along with rules intended to ensure ESG funds’ names align with their investments. The commission issued final fund name rules in September 2023.

The SEC’s investment fund proposal has raised objections from both funds and environmental and investor advocates.

The proposal would require environmentally-focused funds to disclose their carbon footprints, if emissions are part of their investment strategies. But it wouldn’t require funds that look at emissions to disclose other metrics that play a significant role in how they invest and the methodology they use to calculate those measures. The Natural Resources Defense Council, Interfaith Center on Corporate Responsibility, and other environmental and investor groups pushed for those requirements in an April letter to the SEC.

The Investment Company Institute, which represents funds, has raised concerns its members would have to report on their carbon footprints before public companies must disclose their emissions under SEC rules. The group in April called on the SEC to keep fund emissions reporting requirements on ice until the litigation challenging the agency’s public company climate rules is resolved. That litigation is at the US Court of Appeals for the Eighth Circuit, which is unlikely to rule this year.

The fund rules have received no Republican support at the SEC, with only Gensler and his fellow Democratic commissioners voting in favor of proposing them.

“If it’s a Republican Congress and Trump administration, you could imagine they would be willing to disapprove those,” said Susan Dudley, a George Washington University professor who oversaw the White House regulatory policy office under President George W. Bush.

 

Biden Climate Policies the Greatest Financial Risk

Posted on by Ron Clutz

Will Hild writes at Real Clear Policy The Biden Administration Proves Itself Wrong on ‘Climate Risk’.  The report shows how the feds’ own numbers prove their net zero policies pose a far greater financial risk than the climate itself. Excerpts in italics with my bolds and added images.

Environmental activists and left-leaning political bodies have long argued that climate risk is a form of financial risk, constantly pressuring blue states and the Biden Administration to make the issue a central part of their agendas. Recently, a group of those states has started suing oil and gas companies directly in their state courts. California, for example, claims that oil companies have colluded for decades to keep clean energy unavailable. Such lawsuits are ludicrous, and my organization, Consumers’ Research, filed an amicus brief at the Supreme Court supporting an effort to stop this litigation abuse that drives up consumer costs.

These harmful suits are driven in part by the idea that climate risks are inherently financial risks. However, evidence from the Biden Administration’s own study on climate risk shows that these risks are grossly exaggerated and immaterial. In an attempt to justify its radical and onerous climate policies, the Administration inadvertently exposed the fraud behind the environmental movement.

Soon after taking office, President Biden issued an executive order asking executive agencies to assess “the climate-related financial risk, including both physical and transition risks, to … the stability of the U.S. financial system.” Agency officials quickly responded to the order. Treasury Secretary Yellen announced that “climate change is an emerging and increasing threat to U.S. financial stability.” The FDIC declared that climate risk endangered the banking system. The SEC issued controversial climate risk disclosure rules, which impose massive regulatory burdens on Americans.

The problem with these new rules is that the Administration lacked
sufficient evidence to show that “climate-related financial risk” existed.

The SEC and Secretary Yellen relied on a Biden Administration report issued in 2021 by the Financial Stability Oversight Council. However, the report itself admitted that there were “gaps” in the evidence needed to support its speculative assertion that climate change would “likely” present shocks to the financial system. 

John H. Cochrane, a respected Stanford professor, slammed the Biden Administration’s “climate-related financial risk” assertions and highlighted that the Administration has not shown any serious threat to the financial system. “Financial regulators may only act if they think financial stability is at risk,” but “there is absolutely nothing in even the most extreme scientific speculations” to support the type of risk that would allow financial regulators to intervene. [See my synopsis Financial Systems Have Little Risk from Climate]

In response to criticism, the Biden Administration came up with an idea to manufacture its own evidence.  If the Federal Reserve created scenarios in which banks must simulate extreme “physical” and “transition” climate risks, these custom-designed scenarios could show a large impact to the financial system just like federal “stress tests” for banks.

To ensure that the “stresses” were sufficiently severe,
the Biden Administration manipulated the scenarios
to ensure as much stress as possible. 

For example, for “physical risk,” major banks had to simulate the effect of a storm-of-two-centuries-sized hurricane smashing into the heavily populated Northeast United States with no insurance coverage available to pay for the damage.  For “transition risk,” the government demanded a simulation in which “stringent climate policies are introduced immediately,” without any chance for banks to prepare for such policies, along with rapidly rising carbon prices. 

Despite these attempts to make the climate risk as extreme as possible, the tests utterly failed to demonstrate any significant effect.  The Administration’s study demonstrated that even under some of the most extreme climate scenarios imaginable, the probability of default on loans only increased by half a percentage point or less.   In contrast, federal bank stress tests involving true financial stresses, such as a severe recession, have resulted in probabilities of default jumping by 20 to 40 times that amount or more, leading to hundreds of billions in losses. 

The climate analyses also revealed the expected costs
of the Biden Administration’s quixotic net zero quest. 

The Biden Administration employed scenarios from the Network of Central Banks and Supervisors for Greening the Financial System (NGFS). Those climate scenarios envision the cost of carbon emissions steadily rising and reaching over $400 per ton by 2050.  Given that the average American emits about 16 tons of carbon a year, the Biden Administration’s hand-picked climate scenarios would cost the average American around $125k between now and 2050 in government mandated carbon fees.

Thus, the Biden Administration’s own bank stress test proved that climate risk is not a material financial risk, and that the biggest financial risk at issue is that the Administration’s net-zero policies would result in massive financial losses for everyday Americans. The Biden Administration should stop using lies to support their burdensome policies, and blue states should drop their punitive lawsuits against oil and gas companies.  Otherwise, the result of both efforts will be to inflict high costs on everyday Americans without any benefit.

 

 

Another Fake Climate Case Bites the Dust

Posted on by Ron Clutz

The decisive ruling against climate lawfare is reported at Washington Free Beacon Dem-Appointed Judge Tosses Major Climate Case Against Oil and Gas Producers in Blow to Environmental Activists. Excerpts in italics with my bolds and added images.

Baltimore judge deals blow to left-wing effort
to punish oil companies for global warming

A Baltimore judge tossed a landmark climate change lawsuit against more than two dozen oil and gas companies in a sizable defeat for environmental activists and Democrats that have touted the case.

Baltimore Circuit Court judge Videtta Brown—who was appointed to the bench by former Gov. Martin O’Malley (D., Md.)—ruled late Wednesday that the city cannot regulate global emissions and swatted down the city’s arguments that it merely sought climate-related damages from the defendants, not the abatement of their emissions. She further stated that the court does not accept the city’s contention that it does not seek to “directly penalize emitters.”

“Whether the complaint is characterized one way or another, the analysis and answer are the same—the Constitution’s federal structure does not allow the application of state law to claims like those presented by Baltimore,” Brown wrote in her opinion (July 11). “Global pollution-based complaints were never intended by Congress to be handled by individual states,” she added.

In a statement to the Washington Free Beacon, the Baltimore City Department of Law’s chief of affirmative litigation division Sara Gross said the city respectfully disagreed with the opinion and would seek review from a higher court.

The ruling represents the latest setback for a broader left-wing effort to penalize oil companies for allegedly spreading disinformation about the role their products play in causing climate change. Over the past several years, Democratic-led states, cities, and counties—which are home to more than 25 percent of all American citizens—have filed more than a dozen similar lawsuits.

Overall, if plaintiffs were to get their way, oil companies could be forced to pay billions of dollars in climate damages, a potentially catastrophic blow to their ability to stay in business.

Baltimore filed its original complaint in 2018, making it one of the first ever cases of its kind. After it was announced, former Democratic mayor Catherine Pugh said Baltimore was on the “front lines of climate change because melting ice caps, more frequent heat waves, extreme storms, and other climate consequences caused by fossil fuel companies are threatening our city and imposing real costs on our taxpayers.”

“These oil and gas companies knew for decades that their products would harm communities like ours, and we’re going to hold them accountable,” then-Baltimore city solicitor Andre Davis added at the time. “Baltimore’s residents, workers, and businesses shouldn’t have to pay for the damage knowingly caused by these companies.”

BP, Chevron, ExxonMobil, CITGO, ConocoPhillips, Marathon Oil, and Hess
were among the 26 entities listed as defendants in the filing.

“The Court’s well-reasoned opinion recognizes that climate policy cannot be advanced by the unconstitutional application of state law to regulate global emissions,” Theodore Boutrous, who serves as counsel for Chevron, said in a written statement to the Free Beacon. “The meritless state tort cases now being orchestrated by a small group of plaintiffs’ lawyers only detract from legitimate progress toward a lower carbon global energy system.”

The majority of the cases filed by Democratic prosecutors against the fossil fuel industry remain pending and are working their way through local courts, even as the oil industry has pushed for them to be litigated in federal courts.

In a ruling similar to the Baltimore court decision issued Wednesday, a Delaware state court in January delivered a setback to the State of Delaware’s lawsuit against oil producers filed in 2020. That court found that alleged injuries stemming from out-of-state or global greenhouse gas emissions are preempted by the federal Clean Air Act.

Delaware, Baltimore, and most other jurisdictions pursuing the climate cases across the U.S. are being represented by the San Francisco-based law firm Sher Edling. The firm was founded to specifically spearhead these novel cases, but has received criticism for its dark money funding.

In 2022 alone, the most recent year with publicly available data, Sher Edling received grants worth a total of $2.5 million from the New Venture Fund, a pass-through fund managed by dark money behemoth Arabella Advisors, according to tax filings analyzed by the Free Beacon. That funding adds to the more than $8 million the firm received in prior years from dark money groups.

Although Sher Edling’s individual donors remain unknown, past funding for the firm has flowed from the Leonardo DiCaprio Foundation, MacArthur Foundation, William and Flora Hewlett Foundation, and Rockefeller Brothers Fund.

Sher Edling didn’t respond to a request for comment.

19 State AGs Ask Supremes to Block Climate Lawsuits

Posted on by Ron Clutz

In a motion filed Wednesday with the high court, 19 Republican state attorneys general argued that the climate liability challenges — which seek to hold the oil industry financially accountable for climate impacts — threaten “our basic way of life.”

The filing pits Alabama and other red states against five Democratic-led states that have sued oil companies to pay up for rising tides, intensifying storms and other disasters worsened by climate change. The approach tees up a battle royale between states — a type of legal fight that can only be decided by the Supreme Court.

Excerpts from the Bill of Complaint

2. In essence, Defendant States want a global carbon tax on the traditional energy industry. Citing fears of a climate catastrophe, they seek massive penalties, disgorgement, and injunctive relief against energy producers based on out-of-state conduct with out-of-state effects. On their view, a small gas station in rural Alabama could owe damages to the people of Minnesota simply for selling a gallon of gas. If Defendant States are right about the substance and reach of state law, their actions imperil access to affordable energy everywhere and inculpate every State and indeed every person on the planet. Consequently, Defendant States threaten not only our system of federalism and equal sovereignty among States, but our basic way of life.

3. In the past when States have used state law to dictate interstate energy policy, other States have sued and this Court has acted. When “West Virginia, then the leading producer of natural gas, required gas producers in the State to meet the needs of all local customers before shipping any gas interstate,” this Court entertained a suit brought by” Ohio and Pennsylvania against West Virginia. Maryland v. Louisiana, 451 U.S. 725, 738 (1981) (discussing Pennsylvania v. West Virginia, 262 U.S. 553 (1923)). 

4. The Court’s intervention was warranted then and is warranted now because Defendant States are not independent nations with unrestrained sovereignty to do as they please. In our federal system, no State “can legislate for, or impose its own policy upon the other.” Kansas v. Colorado, 206 U.S. 46, 95 (1907);see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571-73 (1996). Yet Defendants seek to set emissions policy well beyond their borders—punishing conduct that other States find “essential and necessary … to the economic and material well-being” of their citizens. E.g., Ala. Code §9-1-6(a).

9. Defendant States are nevertheless proceeding to regulate interstate gas emissions under their state laws and in their state courts. Through artful pleading, they have avoided removal to federal court. See e.g., Minnesota v. Am. Petroleum Inst., 63 F.4th 703, 719 (8th Cir. 2023) (Stras, J., concurring). Each day carries the threat of sweeping injunctive relief or a catastrophic damages award that could restructure the national energy system. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 500-01 (2008) (discussing punitive damages and the “inherent uncertainty of the trial process”).

11. Plaintiff States and their citizens rely on traditional energy products every day. The assertion that Defendant States can regulate, tax, and enjoin the promotion, production, and use of such products beyond their borders—but outside the purview of federal law—threatens profound injury. Therefore, Plaintiff States have no choice but to invoke this Court’s “original and exclusive jurisdiction of all controversies between two or more States.” 

Bogus Math for Climate “Reparations”

Posted on by Ron Clutz

Paul Mueller does the analysis in his AIER article Climate “Reparations” Numbers Are Rigged.  Excerpts in italics with my bolds and added images.

Nobel Prize–winning economist Esther Duflo thinks rich countries should pay poor countries $500 billion in compensation each year for climate-change damages. It is our “moral debt.” She proposes an international 2-percent wealth tax on the ultra-rich and an increase in the global minimum corporate tax rate to fund this $500 billion transfer.

You and I may be shocked by such a suggestion but don’t worry: “It’s really necessary. And it’s reasonable. It’s not that hard.” Only someone in an elite, progressive bubble could say something like that. Let’s check her reasoning.

Duflo claims that climate change creates costs, specifically through “excess” deaths due to excessive heat. Poorer countries from the global south near the equator will see more days of extreme heat, and so will see a disproportionate increase in excess deaths.

Other economists translated those deaths into an externality cost of $37 per ton of CO2. Multiply that by the roughly fourteen billion tons of CO2 emitted by the US and Europe and voila, wealthy countries generate $500 billion in externality costs per year.

She proposes paying for this by increasing the global minimum corporate tax rate from 15 percent to 18 percent and introducing an international 2-percent wealth tax on the ultra-rich, which she defines as the 3000 richest billionaires. We can’t go into the many problems and obstacles to such funding mechanisms here — suffice it to say such ideas will be nearly impossible to implement.

But Duflo’s back-of-the-envelope calculations, besides missing the bigger picture, are so speculative as to require playing make-believe. Let’s play along for a moment to see why. We’ll start by reverse-engineering her $500 billion number into a measure of harm.

Regulatory agencies and insurance companies use the concepts of “statistical value of life” or the “statistical value of a life-year” to do cost-benefit analysis on risk and the monetary value of life. These concepts are slippery, however, and calculated in a variety of ways with a wide range of estimates.

To keep things simple, let’s assume that the value of one life-year is $200,000. The $500 billion number proposed by Duflo suggests that the cost imposed by wealthy countries burning fossil fuels is the loss of roughly 2.5 million life-year” in poor countries per year.  That sounds like a staggering number!

But what about the benefits that have accrued to developing
countries from activities that generate CO2 emissions?

Important advances in medicine, such as antibiotics and vaccines, were developed in modern industrialized countries. So, too, were refrigeration, cars, the internet, smart phones, radar; modern agricultural methods with herbicides, pesticides, and fertilizers; improvements in plumbing, building materials, manufacturing, and much more. “Polluting” activities in industrialized countries improved nutrition and safety around the world. These advances, and many others, significantly increased people’s life expectancies — especially in poor countries.

Surely the value of these improvements should weight the opposite side of the scale from the expected harm of climate change — especially since the crusade against fossil fuels and carbon emissions will assuredly slow economic growth and innovation. Let’s consider the case of India for a moment.

Life expectancy in India has basically doubled from about 35 years in 1950 to about 70 years in 2024. If you consider that India has just over a billion people living in it, modern technology developed by rich CO2-emitting countries has added 35 billion life-years in India alone. 

Translating life-years back into dollars, 35 billion life-years times $200,000 per life-year means that the benefits from greater life expectancy in India over the past 75 years is the equivalent of $7 quadrillion dollars — or in annualized terms, an annual benefit of about $93 trillion dollars. In other words, the benefits to India alone are over a hundred times larger than Duflo’s estimate of costs!

Nor is India cherry-picked. China has a similar story with life expectancy rising from 43.45 years to 77.64 years. Similar improvements in life expectancy occur across the global south.

Of course, one could argue that developed industrial countries are not solely responsible for increases in life expectancy around the world. But one could just as easily say the same about whether developed industrial countries are solely responsible for global CO2 emissions, climate change, or harm to people in the global south due to hotter weather. Connecting these two issues makes perfect philosophical sense, because the production of CO2 has historically been directly associated with increases in economic growth; which in turn is necessary for all the developments increasing longevity around the world.

Even if we massage the assumptions in Duflo’s favor, the results remain favorable to industrialization. Suppose western technology and industrial activities contribute 50 percent to improvements in life expectancy. That’s still a $46 trillion annualized benefit to India. Reduce the value of a statistical life-year to $100,000 — that’s still a $23 trillion/year benefit from industrialization in the west. Exclude India from the analysis and cut the population we focus on down to 500 million people — that’s still over $12 trillion/year in benefits. Reduce the improvement in life-expectancy by six years — that still leaves about $10 trillion/year in benefits.

So, even after making tons of assumptions to reduce their size,
the estimated benefits of industrialization are still about twenty
times larger than Duflo’s estimate of its costs. 

Worrying about hypothetical, indirect costs of CO2 emissions when it comes to human well-being is like scrounging for pennies while ignoring $100 bills lying on the sidewalk. Actually, it is worse than that. It is like lighting $100 bills on fire to help you search a dark alley for some pocket change of human welfare.

Economic development, driven largely by Adam Smith’s dictum “peace, easy taxes, and a tolerable administration of justice” which includes strong private property rights and limited government intervention, has improved human living standards in unprecedented ways over the past 300 years. These remarkable improvements in human welfare are not limited to wealthy, developed economies but are enjoyed around the world. 

Duflo talks about the (external) costs of industrialization on certain countries without considering the truly massive (external) benefits of industrialization to those same countries.

If anything, with a proper accounting, developing countries owe rich countries gratitude for the benefits they have received from industrialization and the corresponding CO2 emissions.

 

 

May Day: Appeals Court Rules Against Kids’ Climate Lawsuit

Posted on by Ron Clutz

Update 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)

Update: Honolulu Climate Shakedown vs Big Oil

Posted on by Ron Clutz

As reported many places, a lawsuit against oil companies was allowed by Hawaii Supreme Court and the defendants (petitioners) have asked the US Supreme Court to hear their case by filing a Petition for a Writ of Certiorari.  Excerpts from the petition are in italics below with my bolds, the citations omitted but with pages noted. The red title is a link to the entire petition.

In the referenced case, at issue is a technical point concerning which court has jurisdiction to rule on the shakedown lawsuit. Defendants ask the Supremes to decide the question:

Whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate. 

On the merits of the case, the petition summarizes this way:

Like many other state and local governments in similar cases across the country, respondents filed this action against petitioners in local state court, asserting claims purportedly arising under state law to recover for harms that respondents allege they have sustained (and will sustain) because of the physical effects of global climate change. (pg. 3)

The Hawaii Supreme Court further held that, despite the complaint’s focus on the physical effects of climate change, interstate and international emissions were not the source of respondents’ injuries; petitioners’ marketing and public statements were. The Hawaii Supreme Court’s decision was incorrect, and it provides this Court with the ideal opportunity to address whether the state-law claims asserted in this nationwide litigation are even allowable before the energy industry is threatened with potentially enormous judgments. (.pg. 4)

Objections:  Asserting Facts Not in Evidence

In recapping the judicial history of this case, defense lawyers quote multiple times judges and plaintiffs made assertions in the absence of evidence. Examples include:

In American Electric Power, supra, the Court addressed the effect of the Clean Air Act on the federal common law governing air pollution. The Court held that the Act displaced nuisance claims under federal common law seeking the abatement of greenhouse-gas emissions from another State. Because the Clean Air Act “ ‘speaks directly’ to emissions of carbon dioxide from the defendants’ plants,” the Court saw “no room for a parallel track” under federal common law. The Court left open the question whether “the law of each State where the defendants operate power plants” could be applied. (pg.6)

Petitioners in this case are 15 energy companies that extract, produce, distribute, or sell fossil fuels around the world. The plaintiff respondents are the City and County of Honolulu and the Honolulu Board of Water Supply. On March 9, 2020, the City and County of Honolulu filed a complaint against petitioners in Hawaii state court, alleging that petitioners have contributed to global climate change, which in turn has caused a variety of harms in Honolulu. The Honolulu Board of Water Supply later joined the case as a plaintiff.

Respondents allege that increased greenhouse-gas emissions around the globe have contributed to a wide range of climate-change-related effects.  In particular, respondents cite:

♦  “sea level rise and attendant flooding, erosion, and beach loss”;
♦ “increased frequency and intensity of extreme weather events”;
♦ “ocean warming and acidification that will injure or kill coral reefs”;
♦ “habitat loss of endemic species”;
♦ “diminished availability of freshwater resources”; and
♦ “cascading social, economic, and other consequences.”

Respondents allege that those effects have resulted in:

♦  property damage;
♦  “increased planning and preparation costs for community adaptation and resiliency”; and
♦  “decreased tax revenue” because of declines in tourism.

Respondents contend that “pollution from [petitioners’] fossil fuel products plays a direct and substantial role in the unprecedented rise in emissions of greenhouse gas pollution,” which is the “main driver” of global climate change. (pg. 9)

At the same time, respondents concede that “it is not possible to determine the source of any particular individual molecule of CO2 in the atmosphere attributable to anthropogenic sources because such greenhouse gas molecules do not bear markers that permit tracing them to their source, and because greenhouse gasses quickly diffuse and comingle in the atmosphere.”

Respondents assert state-law claims for public nuisance, private nuisance, strict liability, failure to warn, negligent failure to warn, and trespass. Each claim is premised on the same basic theory of liability: namely,

♦ that petitioners knew that their fossil-fuel products would cause an increase in greenhouse-gas emissions,
♦ yet failed to warn of that risk and instead,
♦ engaged in advertising and other speech to persuade governments and consumers not to take steps designed to reduce or regulate fossil fuel consumption,
♦ thereby causing increased emissions and climate change. (pg.10)

The Hawaii Supreme Court rejected petitioners’ argument that a sufficient connection between the claims and the forum did not exist because the use of petitioners’ products in Hawaii could not have injured respondents, as Hawaii accounts for only 0.06% of the world’s carbon-dioxide emissions per year. (pg.11)

Separately, the court concluded that, even if federal common law had not been displaced, it would not govern respondents’ claims. The court recognized that federal common law governs claims where “the source of the injury * * * is pollution traveling from one state to another,” but it asserted that the source of respondents’ alleged injury was petitioners’ “tortious marketing conduct,” not “pollution traveling from one state to another.” The court did not attempt to reconcile that characterization with its earlier recognition that respondents’ theory of liability depends upon petitioners’ conduct allegedly “dr[iving] consumption [of fossil fuels], and thus greenhouse gas pollution, and thus climate change,” resulting in alleged physical and economic effects in Honolulu. (pg.12-13)

In the Hawaii Supreme Court’s view, the inherently federal area of interstate pollution covers only claims where “the source of the injury * * * is pollution traveling from one state to another,” not “failure to warn and deceptive promotion.” But the complaint in City of New York likewise alleged that the defendants’ promotion and marketing of their products caused injury by increasing greenhouse gas emissions. The Second Circuit nevertheless concluded that the plaintiff was seeking relief “precisely because fossil fuels emit greenhouse gases” and thereby exacerbate climate change, and it thus declined to allow the plaintiff to “disavow[] any intent to address emissions” while “identifying such emissions” as the source of its harm. (pg.18)

Allowing the law of one State to govern disputes regarding pollution emanating from another State would violate the “cardinal” principle that “[e]ach [S]tate stands on the same level with all the rest,” by permitting one State to impose its law on other States and their citizens. Federal law must govern such controversies because they “touch[] basic interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.” And because “borrowing the law of a particular State would be inappropriate” to resolve such interstate disputes, federal law must govern. (pg.23)

Respondents’ theory of liability is that petitioners’ fossil-fuel products are “hazardous” because they “cause or exacerbate global warming and related consequences,” and that petitioners acted wrongfully by promoting those products and allegedly taking actions to “conceal[] the[ir] hazards” and prevent “the[ir] regulation.” Respondents are seeking relief in the form of damages and equitable remedies for physical harms allegedly caused by global climate change, including “sea level rise, drought, extreme precipitation events, extreme heat events, and ocean acidification.” The “gravamen” of respondents’ complaint, is thus that petitioners’ conduct increased the world wide use of fossil fuels, resulting in increased global greenhouse-gas emissions, which contributed to global climate change and resulted in localized physical effects in Hawaii. (pg.24-25)

Respondents allege that their injuries are caused by the interstate and international emissions of greenhouse gases over many decades. Respondents’ requested relief—including damages—is designed not only to remedy injuries allegedly caused by those emissions but to regulate worldwide activities producing those emissions. Respondents are simply attempting to recover by moving up one step in the causal chain and suing the fuel producers rather than the emitters themselves (which include the vast majority of the world’s population). (pg.25)

Although the Clean Air Act has two saving clauses, they are materially identical to the Clean Water Act’s saving clauses and thus permit actions under state law only to the extent that the plaintiff is proceeding under the law of the State in which the source of the pollution is located. Of course, that is impossible here, where the alleged mechanism of respondents’ injuries is the combined effect of all greenhouse gas emissions worldwide. Federal law thus precludes respondents’ state-law claims. Indeed, in light of the breadth of the Clean Air Act’s governance of greenhouse gas emissions, respondents’ state-law claims would be foreclosed even if a presumption against preemption
applied. (pg.26)

Climate activists protesting outside the Supreme Court July 1, 2022 after the court announced its decision in West Virginia v. EPA. Francis Chung/E&E News/POLITICO

Because respondents seek relief for climate-change related harms, international emissions—which represent the overwhelming majority of total anthropogenic emissions—are the primary causal mechanism underlying their alleged injuries. “Greenhouse gases once emitted become well mixed in the atmosphere; emissions in New Jersey may contribute no more to flooding in New York than emissions in China.” (pg.27)

The complaint is candid on this point: respondents repeatedly allege that defendants’ conduct led to increased greenhouse-gas emissions worldwide, which caused or exacerbated global climate change and thereby caused localized harms in Hawaii. Respondents nowhere alleged harm from petitioners’ alleged deceptive conduct other than through the mechanisms of increased emissions and global climate change. When faced with the same argument, the Second Circuit rightly held that a plaintiff cannot “have it both ways” by “disavowing any intent to address emissions” when convenient while simultaneously “identifying such emissions as the singular source of the [alleged] harm.” (pg.30)

The approach adopted by the Hawaii Supreme Court not only contravenes this Court’s precedents but would also permit suits alleging injuries pertaining to global climate change to proceed under the laws of all 50 States—a blueprint for chaos. As the federal government explained in its brief in American Electric Power, “virtually every person, organization, company, or government across the globe * * * emits greenhouse gases, and virtually everyone will also sustain climate-change-related injuries,” giving rise to claims from “almost unimaginably broad categories of both potential plaintiffs and potential defendants.” Out-of-state actors (including the nonresident energy companies here) would quickly find themselves subject to a “variety” of “vague” and “indeterminate” state-law standards, and States would be empowered to “do indirectly what they could not do directly—regulate the conduct of out-of-state sources.” That could lead to “widely divergent results”—and potentially massive liability—if a patchwork of 50 different legal regimes applied. And that is especially true to the extent that a state court attempts to exercise jurisdiction expansively over any energy company that does business in the State.

Background Resource

Finally, a Legal Rebuttal on the Merits of Kids’ Climate Lawsuit

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