Even Stupider Than The Stupidest Litigation In The Country

May 11, 2024/ Francis Menton @ Manhattan Contrarian

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?

Climate chaos claims continue causing consternation

From the Oakland v. oil company lawsuit to ridiculous “research,” the onslaught never ends

Paul Driessen

Anyone who thought “manmade climate cataclysm” rhetoric couldn’t possibly exceed Obama era levels should read the complaint filed in the “public nuisance” lawsuit that’s being argued before Federal District Court Judge William Alsup in a California courtroom: Oakland v BP and other oil companies.

The allegations read at times like they were written by a Monty Python comedy team and a couple of first year law students. Defendant companies “conspired” to produce dangerous fuels, the complaint asserts, and “followed the Big Tobacco playbook” to promote their use, while paying “denialist front groups” to question “established” climate science, “downplay” the “unprecedented” risks of manmade global warming, and launch “unfounded attacks on the integrity” of leading “consensus” scientists.

“People of color” and other “socially vulnerable” individuals will be most severely affected, it continues. (They’ll be far more severely impacted by climate policies that drive up energy and food prices.)

Oakland’s lawyers excoriate astrophysicist Wei Hock “Willie” Soon for committing the unpardonable sin of suggesting the sun might have something to do with climate change. They couldn’t even get his PhD degree right. They call him an “aerospace engineer,” and claim he personally received $1.2 million that was actually paid to Harvard University (as multiple, easily accessible documents make clear).

They don’t even mention the billions of taxpayer dollars that have been divvied up year after year among researchers and activists who promote alarmist views on global warming and renewable energy.

Oakland and its fellow litigants expect the court to accept their claims at face value, as “established” science, with no need to present real-world evidence to support them. They particularly emphasize rising seas and the resulting “imminent threat of catastrophic storm surges” that are “projected” by computer models that assume carbon dioxide from fossil fuels is now the primary or sole driver of climate change, replacing the sun, cosmic rays, ocean currents and other powerful natural forces that did so “previously.”

In suing the five major oil companies, they ignore the fact that the companies burn very few of the hydrocarbon fuels they produce. It is the plaintiff city governments and their constituents who have happily burned oil and natural gas for over a century, to fuel their cars, heat, cool, light and electrify their offices and homes, and make their industries, communications, health and living standards possible.

In the process, it is they who have generated the plant-fertilizing CO2 that is allegedly causing the unprecedented global warming, melting ice caps and rising seas. Hydrocarbons also fuel essential backup electricity generators for California’s wind and solar facilities – and provide raw materials for fabrics, plastics, paints, pharmaceuticals and countless other products the litigants use every day.

Equally problematical for the plaintiffs, the “established, consensus” science asserted throughout their complaint and courtroom presentations is increasingly uncertain and hotly debated. As Heartland Institute scholar Joe Bast points out, even the Intergovernmental Panel on Climate Change now expresses numerous doubts and uncertainties about rates of sea level rise, the role of CO2, the cause and duration of a global warming “pause” that has now lasted some 23 years. Indeed, the temperature spike caused by the 2015-16 El Niño has now almost disappeared, as the oceans and atmosphere continue to cool once again.

The oil companies decided not to present much climate science in the courtroom. However, expert materials prepared by Christopher Monckton, Will Happer, Richard Lindzen and colleagues addressed questions about equilibrium climate sensitivity and related issues in amicus curiae filings for the court.

Oakland’s claim that the oil companies “conspired” to hide and misrepresent “the science” on global warming and climate change is on thin ice. Some reports say Judge Alsup dismissed the claim or ruled that plaintiffs failed to demonstrate that there was a conspiracy. In any event, a decision on the merits will eventually be made, the losing party will appeal, and the case will likely end up in the US Supreme Court.

Meanwhile, climate chaos claims continue causing consternation in some circles. Too much money, power, prestige, control and wealth redistribution is at stake for anything else to happen.

Indeed, many in the $1.5-trillion-a-year Climate Industrial Complex are determined to use this issue (and equally malleable “sustainability” mantras) to replace free enterprise capitalism with totalitarian one-world governance; fossil fuel and nuclear power (the source of 85% of US and global energy) with expensive, land-intensive wind, solar and biofuel energy; and the hopes and dreams of poor people everywhere with policies that permit their living standards to improve only minimally, at the margins.

Actually, climate chaos hype-potheses now blame not just carbon dioxide and methane for runaway global warming, but also asthma inhalers and meat diets. The results aren’t just rising seas, warmer and colder weather, wetter and drier seasons, forest fires, nonexistent mass extinctions and the other oft-cited pseudo-cataclysms. They also include shrinking animals, a worse opioid crisis, and the endless litany of often amusing afflictions and disasters chronicled in The Warmlist and its video counterpart.

The “solution” isn’t just keeping fossil fuels in the ground. It also includes accepting profound lifestyle changes and dining on climate friendly insects (not ruling elites; just the rest of us).

And the real effects of manmade climate cataclysm fears are not just soaring prices for less available, less reliable, grid-destabilizing “green” electricity. They also include having to rescue adventurers who try to sail, snowmobile or trek across supposedly melting Arctic and Antarctic ice packs – only to become stranded and frostbitten or have their ships trapped in rapidly freezing ice.

So, what should climate disaster stalwarts do, when temperatures and sea levels refuse to cooperate with Al Gore speeches and computer model “projections” and “scenarios”? Or when forecasts of more hurricanes are followed by a record 12-year absence of any Category 3-5 storms hitting the US mainland?

One strategy is refusing to debate anyone who challenges the dire hypotheses, data or conclusions. Another involves “homogenizing,” “correcting” and manipulating original data, to make Dust Bowl era temperatures less warm – and this year’s long and bitterly cold winter not nearly so frigid, by adjusting records from local temperature stations by as much as 3.1 degrees Fahrenheit (1.7 Celsius).

As to the numerous articles and studies published on WattsUpWithThat.com, DrRoySpencer.com, ClimateDepot.com, ClimateChangeReconsidered.org and other sites that focus on evidence-based climate studies and research, and challenge assertions like those relied on in the Oakland complaint – the increasingly preferred strategy is to employ algorithms and other tactics that relegate their work to the bottom of search engine results. Long lists of alarmist claims, articles and perspectives appear first, unless a student or other researcher enters very specific search terms. Even the major shortcomings of wind power are hard to find, if you don’t know precisely what you are looking for.

Google, Facebook, You Tube and other search, information and social media sites appear determined to be the arbiters of what information, facts and realities we can access, what our children can learn. They help stigmatize and bully scientists whose research or views do not hew to accepted liberal perspectives, and have even enlisted corporate advertisers into policing the speech of political opponents.

All this from the champions  of free speech, tolerance, diversity and inclusion. Just bear in mind:

The issue is not whether our planet is warming, or whether climate and weather are changing. The issue is what is causing those fluctuations, how much is due to fossil fuels versus to natural forces, and whether any coming changes will be as catastrophic as natural forces have caused multiple times in the past. (Imagine what would happen to cities, farms and humanity if we had another Pleistocene ice age.)

All of this once again underscores why America and the world need “Red Team” climate science exercises, more evidence-based climate education, and a reversal of the Obama EPA’s unsupported finding that carbon dioxide emissions somehow endanger human health and welfare.

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books and articles on energy and environmental policy.