Climate Litigation

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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Machinery for Global Sustainability Tyranny

Posted on by Ron Clutz

Terence Corcoran shines light on the emerging global control structure in his Financial Post article Is the global march towards sustainable development unsustainable? Excerpts in italics with my bolds and added images.

Regulations related to climate risks could prove a costly burden
for Canadian corporations, institutions

The planned reset of global corporate capitalism to save the planet continues to stumble toward the great unknown, in the sense that even after decades of effort the machinery to expand regulatory control over investment and business decisions remains bogged down in murky conceptual clay. Developments in regulatory and legal circles suggest 2024 will be a pivotal year for the revolutionary ideas that are supposed to lead to a fundamental transition from bad economic policy to green.

The underlying concepts are well known by name. We have corporate social responsibility (CSR), environmental and social governance (ESG), the precautionary principle, and sustainable development. What all these buzz-phrases mean is another question. Looking through the latest developments around the initiatives, however, a certain sense of apprehension, doubt and even a bit of squeamish uncertainty seem to have taken hold.
In recent days major global investment firms such as U.S.-based JP Morgan and State Street have pulled away from Climate Action 100+, a global industry-led coalition with grandiose objectives to fight the “systemic risks” of climate change. The claim is that investors must ensure the businesses they own have strategies that “accelerate the transition to net-zero emissions by 2050, or sooner, and align with the goal of the Paris Agreement” set by the United Nations in 2015.  Despite decades of talk following the radical Limits to Growth movement of the 1970s, the 1987 Brundtland report and the 1992 Rio Earth Summit’s endorsement of “sustainable development,” the remake of corporations into vehicles for economic and climate control remains far from complete.
In New York this week, the International Financial Reporting Standards (IFRS) Foundation held a symposium to inform corporations, institutions, regulators and advisors on the emerging accounting and reporting standards surrounding sustainable development. “Achieving a truly global baseline of sustainability-related disclosures necessitates a strong focus on supporting implementation across all economic settings, so that all market participants can access its benefits.”One of the symposium sessions was titled: “Get ready for jurisdictional adoption: How regulators are responding to the ISSB” — the International Sustainability Standards Board. Released last June, the ISSB standards will require corporations and investment organizations around the world to adopt common reporting approaches to climate and other environmental issues. It’s an authoritarian, top-down and anti-competitive regime that leaves no country or sector free to set its own rules.

All nations and regulators are to be locked in a global climate-control structure.

Canada is part of that structure through the Canadian Sustainability Standards Board, which this month announced a public consultation to advance adoption of sustainability disclosure standards in Canada. The consultation begins in March and runs through to June. One objective is to determine, with provincial securities regulators, how to impose mandatory reporting to replace voluntary standards on climate and environmental issues.

The Canadian Securities Administrators (CSA), which includes provincial securities commissions, is being pressured to take action on the grounds that Canada could get left behind. A paper released earlier this month by the Canada Climate Law Initiative at the University of British Columbia urged regulators to move forward quickly with new sustainability standards. Failure to act in concordance with the ISSB could cause Canada to lose international investment flows, the report claims.

The document continues through 20 pages of detailed recommendations covering climate-related strategies, investments, metrics, targets, performance, cash flows, scenarios, climate transition plans and science-based taxonomies. How any of this massive effort relates to corporate performance for shareholders is not addressed.

Looking to the future, the Law Initiative suggests the CSA should also begin thinking about requiring future reports  related to a corporation’s “relationship to terrestrial, freshwater and marine habitats, ecosystems and populations of related fauna and flora species, including diversity within species, between species and of ecosystems, and their interrelation with Indigenous and affected communities.”

Internationally, Canada must also deal with the uncertainty surrounding the differing emerging global standards, including the still-to-be-determined U.S. Securities and Exchange Commission (SEC) approach to sustainable development. As the consulting firm EY put it in an updated report last month, “Entities with significant operations in multiple jurisdictions need to understand the key differences among the SEC proposal, the ESRS [European Sustainability Reporting Standards] and the ISSB standards because they might be subject to more than one set of requirements.” Another EY report this week warns that sustainable development “continues to face a range of challenges” in terms of costs, technologies and standardization.

The legal proposals would burden Canadian corporations and institutions with massive reporting responsibilities and costs related to climate risks. On corporate governance, for example, the Climate Law Initiative calls for securities issuers to “disclose the governance processes, controls, and procedures it uses to monitor, manage, and oversee climate related risks and opportunities.”

All of this is taking place on a shaky theoretical foundation
in economics and environmental change.

The 1987 Brundtland Commission simplistically defined sustainable development as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs.” Exactly what “needs” are is unclear. Maybe it was intended to capture Marx’s slogan: “From each according to his ability, to each according to his needs.” Meaning: Take from wants of the developed world and give to the needs of the developing world?

The missing fundamentals of the 50-year-old movement to reshape the corporate model should receive a little more attention in the months ahead. Could it be that sustainable development is unsustainable?

Postscript

Meanwhile, the sustainability movement is transitioning to students. In Kelowna, B.C., and Toronto this week the goal is to inspire the next woke generation of environmentally active citizens. At the Toronto event, the organizers summarized their plan. “We welcome high school students and their teachers to this dynamic one-day conference that brings together youth and community organizations from across Ontario to discuss, collaborate and learn how to make sustainable and equitable change in our world.”

 

 

 

‘Charities’ Spend Millions on Climate Change Lawfare

Posted on by Ron Clutz

In his article at The Hill Robert Stilson answers the question Why are ‘charities’ funneling millions into climate change lawfare? Excerpts in italiics with my bolds and added images.

Over the last several years, dozens of dubious climate change lawsuits have
been brought by state and local governments against the oil and gas industry.
They are bringing these cases with help from white-shoe law firms,
funded by non-profit money from Big Philanthropy.

Such attempts at “legislation through litigation” represent yet another example of the deeply regrettable tendency toward the ends-justify-the-means rationalizations common in contemporary political activism. The millions in tax-exempt philanthropic dollars apparently underwriting this lawsuit campaign also raise serious questions about the proper relationship between charity, politics and the judicial system.

Citing recently released tax filings, Fox News reported that the New Venture Fund, a registered 501(c)(3) charity and the largest constituent member of the giant left-of-center political nonprofit network managed by Arabella Advisors, had granted $2.5 million to the for-profit law firm Sher Edling in 2022. This was after it had funneled $3 million to the firm last year.

Sher Edling is best known for representing state and local governments in a slew of lawsuits against oil and gas companies, accusing them of downplaying or otherwise misrepresenting the impact that their products have on the global climate. The governmental plaintiffs (which include the states of Rhode Island and Delaware, the cities of Charleston, South Carolina and Baltimore, the county of Anne Arundel, Maryland, and others) are suing to force “Big Oil” to pay them compensation for the vast costs that these governments claim they are incurring due to climate change.

None of the plaintiffs have yet prevailed on the merits,
but the catch is they don’t necessarily need to. 

Activists hope that if just one case lands before “one judge in one state in one courtroom that sees a path to allowing these cases to go to trial,” discovery and the prospect of a jury trial could give them major leverage over the industry. The activists don’t necessarily need to win a verdict to achieve their ultimate objectives pertaining to future climate policy or legislation.

The money Sher Edling received from the New Venture Fund was apparently routed through one of the nonprofit’s countless fiscally-sponsored projects: the Collective Action Fund for Accountability, Resilience, and Adaptation. It has no website or other public profile, but grant descriptions explain that the fund’s purpose is to funnel charitable dollars to “enable cities, counties, and states hard hit by climate change to file high-impact climate damage and deception lawsuits represented by expert counsel.” This was formerly a project of a different 501(c)(3) called the Resources Legacy Fund, before switching its sponsorship to the New Venture Fund.

Notably, the Collective Action Fund has received
significant support from Big Philanthropy.

Major known funders include the MacArthur Foundation ($9 million since 2017) and the JPB Foundation ($3.3 million from 2020 to 2022, plus another $1.15 million approved for future payment), in addition to six-figure totals from the Hewlett Foundation, the Rockefeller Brothers Fund, and the Gordon and Betty Moore Foundation.

In an October 2023 letter responding to congressional inquiries, Sher Edling claimed that this philanthropic money does not underwrite specific lawsuits, but is instead used to support “the firm’s general operations in this area” — that is, climate litigation.

Because it would bypass the legislative process on a major issue of public policy, commentators have aptly labeled this whole phenomenon “legislation through litigation,” or even “lawfare.” They have raised important questions that more people should be asking. At least two overarching issues deserve particular mention.

The first concerns the nature of the lawsuits themselves. Climate change (and what should be done about it) is among the most contentious and consequential public policy issues of our time. The debate surrounding it involves major uncertainties and tradeoffs that carry with them direct personal ramifications for virtually every American. It is exactly the sort of issue that should be resolved though the political process, by voters and their elected representatives in Congress, not through a judicial process, by private lawyers and their ideologically motivated funders.

Moreover, it defies any notion of justice to hold the oil and gas industry civilly liable for producing and selling a product that is utterly essential to humanity’s survival — including these governmental plaintiffs’ own constituents. That is essentially what these lawsuits boil down to.

The second concern relates to the manner in which this litigation is evidently being at least partially financed. Big Philanthropy is routing millions of charitable dollars through a tax-exempt 501(c)(3) nonprofit to a for-profit law firm, for the purpose of supporting a nationwide litigation campaign. Is there a point at which such an arrangement ceases to be “charitable,” in the sense that we collectively understand that term? If so, what should we do about that?

Government lawsuits against the oil and gas industry over the alleged impacts of climate change rest upon an entirely unjust theory of liability. They are an affront to both the civil justice system and the democratic legislative process.

That they are apparently being underwritten by giant private foundations is further evidence of just how far Big Philanthropy has moved away from what most Americans would consider “charity.”

Programming Judges for Woke Climate Rulings

Posted on by Ron Clutz

Olivia Murray reports at American Thinker America’s judiciary is quietly receiving ‘training’ from leftwing climate group.  Excerpts in italics with my bolds and added images.

With Enlightenment came secularism, with secularism came relativism, with relativism came leftism, and with leftism comes judicial activism. No longer are Western courts viewed as a place of arbitration based upon absolute Judeo-Christian morality and standards of justice, but a vehicle to enact revolutionary change, where fairness and righteousness are in the eye of the executor.

According to a new report published by Fox News today, America’s judiciary has been quietly receiving climate change arbitration “training” from  a “little-known judicial advocacy organization” financed by “left-wing nonprofits.” Here are the details, from the article itself:

The Washington, D.C.-based Environmental Law Institute (ELI) created the Climate Judiciary Project (CJP) in 2018, establishing a first-of-its-kind resource to provide ‘reliable, up-to-date information’ about climate change litigation, according to the group. The project’s reach has extended to various state and federal courts, including powerful appellate courts….

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

When you have a group of people who don’t believe in the foundational values of America, this is what you get—a covert operation to transform what ought to be an unbiased and nonpartisan apparatus into a biased and partisan one. When the courts become an instrument to advance an agenda, it is a serious infringement on the right of a person or party to an impartial arbiter and the development is, naturally, alarming. When judicial minds receive “quiet training” in pseudo-science to ensure “climate justice” and “equity” are taken into consideration the threat of prejudiced decisions increases, and unconstitutional laws, and bureaucratic rules and mandates become “legal” despite any fact, reason, or authority to support their implementation.

Fox also reports that in just five years, the CJP “has crafted 13 curriculum modules” and hosted dozens of events—all in all, “more than 1,700 judges” have participated in CJP’s “training” scheme.

From ELI’s website on its CJP, we find this:

As the body of climate litigation grows, judges must consider complex scientific and legal questions, many of which are developing rapidly. To address these issues, the Climate Judiciary Project of the Environmental Law Institute is collaborating with leading national judicial education institutions to meet judges’ need for basic familiarity with climate science methods and concepts.

Now this isn’t a great analogy because certain sciences are settled—embryology establishes that life begins at conception, ultrasounds unequivocally determine that babies in the womb are actually living human beings, and biological reality aligns with the real reality of two sexes (everything else is mental illness), etc.—but how would the left handle a pro-life nonprofit being a very real presence in law schools, presenting its curriculum as objective (even though it actually would be) and the institution requiring its students to take the course? Or, a Christian outfit, asserting that humans are not gendered but sexed? Obviously, the useful idiots would lose their collective mind.

I wonder how we can expect those gas stove rulings to go? What about when the tyrannical government imposes a “carbon emissions” limit on all American subjects? And when the federal bureaucracy takes away the heating and cooling elements in our home? What happens if legislators dictate that grocery store chains can only sell a limited amount of beef—or, none at all?

Will these illegal actions be upheld? Well, presumably yes,
because a “trained” judiciary will be right there to rule the “right” way.

Background 

Critical Climate Intelligence for Jurists (and others)

Advice on Cross Examining Climatists

Time to Cross Examine Climatists