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De Omnibus Dubitandum - Lux Veritas

Sunday, May 12, 2024

Even Stupider Than The Stupidest Litigation In The Country

I have had several posts on a collection of related cases that I have called “The Stupidest Litigations In The Country.” These are cases where climate hysterics have sued oil and gas producing companies, or the federal government, or both, seeking various extreme punishments ranging from massive damages up to and including an order to end all production of fossil fuels. The asserted grounds vary somewhat from case to case, but a central theme is a claimed constitutional right to a “clean and healthy environment.”

My last update on these cases was a post on April 9. A main subject there was the lawsuit of Juliana v. United States, which is one of the cases where the federal government is the defendant and the goal is to require it to force an end to the production of fossil fuels. The occasion for the post was that, nine years into the litigation, the federal defendant had just launched its third effort to get the Ninth Circuit Court of Appeals to end the case on the ground of “non-justiciability” — that is, to get the court to rule that such an issue of society-wide energy policy is not a proper subject to be decided by a court. Instead, the Department of Justice was arguing, this sort of question must be left to the political branches of government, that is, legislatures and executives. (On May 1, a three-judge panel of the Ninth Circuit in fact ordered that the Juliana case be dismissed. We’ll see if that sticks. The plaintiffs still have a few litigation options left, including seeking “en banc” review from the full Ninth Circuit, and seeking review from the Supreme Court.)

Meanwhile, be careful what you wish for. If the decision to blame energy-producing companies for everything wrong with the environment is to be left to the political branches, what’s to stop those political branches from jumping into this act?

In the last few days, the legislature in the state of Vermont has done just that. NBC News has the story on May 7, with the headline “Vermont passes bill to charge fossil fuel companies for damage from climate change.”

It looks like little Vermont (population about 650,000) is going to step up to save the planet where all the big players like the federal government and California have failed. The idea here is that the state will force the fossil fuel producers to pay damages to compensate for any losses attributable to “climate change.” If you believe that all extreme weather is the fault of “climate change” (and it appears that they do believe that), then this could add up to some enormous sums. From NBC:

Vermont lawmakers passed a bill this week that is designed to make big fossil fuel companies pay for damage from weather disasters fueled by climate change.

Here is a link to the state legislature’s website for the text of the bill. As of now, the bill appears to have passed both houses of the legislature, and is awaiting the signature of the Governor. The Governor — Phil Scott, a Republican — may well balk. However, the bill passed with very few dissenting votes, so even if Scott vetoes it, there are likely to be plenty of votes of override.

My comment is that this legislation is even stupider than the stupidest litigations. It’s so stupid that even California hasn’t tried it.

Here is NBC’s summary of how the new law will work:

Vermont’s bill, referred to as its Climate Superfund Act, would . . . mandate that big oil companies and others with high emissions pay for damage caused by global warming. The amounts owed would be determined based on calculations of the degree to which climate change contributed to extreme weather in Vermont, and how much money those weather disasters cost the state. From there, companies’ shares of the total would depend on how many metric tons of carbon dioxide each released into the atmosphere from 1995 to 2024.

So what exactly is the game plan? I don’t think that they have thought this one through, to put it mildly. Isn’t every citizen of Vermont a user of fossil fuels? How about the state itself? Exxon may have produced a bunch of gasoline by pumping crude oil and refining it down in Texas, but the state of Vermont is the one that made all those emissions by running a fleet of cars and trucks and heating all its buildings. Is the state prepared to restrict at all the use of fossil fuels in its territory, or is it just going to pretend that nobody but the fuel producers has any role in making emissions?

I can’t wait to see how the litigation back-and-forth plays out. Many possibilities suggest themselves. One likelihood is that the producers could raise prices to their Vermont distributors to recoup whatever extra costs Vermont imposes on them, thus effectively passing any damage claims right back to the Vermont consumers. Or potentially the oil companies could join into the litigation as third-party defendants all the citizens of Vermont and the state itself. That would be fun.

There is likely to be a huge issue of Vermont getting jurisdiction over all or even a few of the fossil fuel producers. Everybody can name about five gigantic oil companies, and most people have the impression that those five companies are responsible for most emissions. But in fact there are hundreds of companies that produce oil, natural gas and coal, and far and away most emissions come from fuels both produced and consumed outside the U.S. 

Most production of fossil fuels occurs in places like China, Russia, Saudi Arabia and India. Even as to U.S. producers that sell products in Vermont, I believe that under recent Supreme Court law (Daimler v. Bauman), Vermont does not have the ability to force producers to respond to claims in Vermont courts unless the company is either incorporated in Vermont or has its headquarters in Vermont. That’s probably none of them. Will Vermont launch dozens of claims around the country, most in states (Texas, Oklahoma, Louisiana, etc.) that are friendly to fossil fuel producers?

At the Pirate’s Cove, the Pirate has this comment:

What happens if the fossil fuels companies decide to leave? How does the government itself operate without fossil fuels? How do many heat their homes? Get to work? Operate their boats? Do visitors want to deal with high costs, or, just go elsewhere? How do truck bring goods in if there are no gas stations? How do planes get fuels?

Well, the companies can’t get together and all agree to leave. That would be a violation of the antitrust laws. But they can go to the legislature and dare it to ban them all from selling anything in the state. That’s what I would propose they do.

Somehow, the Vermont legislature cannot see how ridiculous it looks blaming fossil fuel producers for carbon emissions when in fact all of the people of Vermont, as well as the state itself, are the ones buying and burning the fuels. Why don’t they just stop if it’s such a bad thing?

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