Guest post by Roger E. Sowell, Esq.
With climate change regulation dead or nearly dead (except in kooky California with AB 32), the desperation of adherents of man-made climate catastrophe is apparent from this latest round of proposed lawsuits. Below is the AP headline and brief excerpt from the article, with commentary following that.
Climate activists target states with lawsuits” — from the AP
A group of attorneys using children and young adults as plaintiffs plans to file legal actions in every state and the District of Columbia on Wednesday in an effort to force government intervention on climate change. . . .
The goal is to have the atmosphere declared for the first time as a “public trust” deserving special protection.”
Full article is at http://news.lp.findlaw.com/ap/f/1310/05-04-2011/20110504015000_02.html
First, below is a brief explanation of the Public Trust doctrine. Then, after that is a discussion of how the Public Trust doctrine would be used to force governments to pass laws to prevent or greatly restrict carbon dioxide emissions into the atmosphere. There are several problems in using the Public Trust doctrine in such a way.
The Public Trust doctrine is very ancient, dating back at least to Roman times and the Justinian Code. It was more related to navigable waterways, rivers, bays, and oceans than the air. The concept also applied to the submerged land under the waters. The concept was that nobody could own the waterways, because they were free for all. However, the government, or sovereign, could and would own the waterways “in trust” as the trustee for all the people. The government could lease or restrict some of these waterways, and the lands underlying them. Such restrictions or leases had to be in the best interest of the people.
Today, many states in the U.S. have public trust doctrines, but they have differences. Not all include the atmosphere, or air. The central question is, is the atmosphere sufficiently similar to navigable waterways to qualify as a public trust? Some similarities exist: ships sail on the waterways, and airplanes fly through the air. Air routes are regulated by the government, in particular, the FAA in the US. Some buildings are allowed along waterways, such as ports, marinas, and piers. Skyscrapers are allowed to penetrate the atmosphere, too. Pollution into waterways is regulated, sometimes very heavily regulated. Air pollution of some sorts is also regulated, but not all pollutants are regulated in all places.
The idea of using the public trust doctrine to achieve climate change laws is not new, dating back at least to 2008 and Law Professor Mary C. Wood’s speech. (see e.g. http://www.globalclimatelaw.com/2008/09/articles/regulation-by-litigation/law-professors-novel-advocacy-of-public-trust-doctrine-in-climate-litigation-faces-hurdles/ )
Rational courts very likely will have a difficult time agreeing with the public trust doctrine and applying it to climate change laws. There are many reasons for this, and some of the reasons pertain to highly technical legal arguments. However, these reasons for failure include a lack of “standing” by the plaintiffs. This is the first hurdle any such lawsuit must overcome, and has three basic points. To be successful on the “standing” question, and continue the lawsuit into the merits, the plaintiff must show that 1) he either has been harmed or is imminently likely to suffer harm, and 2) that his harm is fairly traceable to the defendant’s actions, and 3) that the court can fashion a remedy to alleviate the harm. Failure to show any one of these three things results in the case being dismissed for a lack of standing. There are some other finer points to a standing argument, however these three will suffice for now.
The first point, harm to the plaintiffs, is addressed by the belief that failure to enact climate change laws will produce an over-heated planet. A greatly hotter planet is predicted to have dire consequences. Among the predicted events are millions of climate refugees, massive reduction in coral reefs due to ocean acidification, inundated seashores from rising sea levels, with the sea level increase caused by hotter ocean water and melted polar ice caps, frequent and unusually strong hurricanes or tropical cyclones, weather too hot to grow crops, prolonged and devastating heat waves, and outbreaks of heat-related diseases and the attendant deaths. Of course, many other catastrophes are predicted.
The second point, regarding the harm being fairly traceable to the defendant’s actions, is a great sticking point. Here, plaintiffs must show that increases in CO2 are causing and will cause the dire events that are predicted. “Fairly traceable” means that there is a direct cause-and-effect that can be discerned. This will be where the fun begins, as each side trots out their experts and makes their case. The fact that CO2 has risen over the past 50 years, yet none of the dire events have occurred surely will not be overlooked by the defense attorneys. The facts that CO2 continues to rise, and the global and regional temperatures are falling, and the ocean levels are falling, and the ocean temperatures are falling, also will surely be emphasized by the defense attorneys.
The third point, that a court can fashion a remedy to reduce or eliminate the harm, is also a problem. The very fact that the atmosphere moves around, from state to state and country to country, is a great problem in this case. Even if a state were to decree that the plaintiffs have standing, that their case has merit and the harm is traceable to rising CO2, there would be little benefit from granting a remedy to prevent CO2 emissions in that state alone. Even California, with its mis-guided law on climate change known as AB 32, admits that actions taken in California cannot impact the global climate.
The article above that discusses Professor Wood’s speech gives several other areas where such lawsuits might fail. Still, there are some judges that likely will buy into the global warming and man-made causation. If such judges are found, there are the appeals and ultimately the US Supreme Court.
One such other area is known as the “political question.” Some lawsuits concern issues that are better decided by the legislature rather than the courts. Climate change is one of those issues, in the view of many. Courts are very constrained by procedural rules, rules of evidence, shortness of time, whereas a legislative body is not nearly so constrained.
The greater question is, though, why are such lawsuits even considered necessary? If the climate were indeed overheating because of CO2 increases, one would think that it would be obvious by now. After all, CO2 has been increasing steadily for at least the past 50 years. The legal strategy appears to be to file a multitude of lawsuits in several states, and hope that one or more are successful. Then, proponents can point to that successful lawsuit and claim it as a precedent. Many times, a precedent will be followed by other states. However, the strategy is very likely to fail. For example, if ten lawsuits are filed in ten different states, and only one succeeds, then nine states have declared that the public trust doctrine does not apply to the atmosphere in their state. Those states will be very, very reluctant to change their views even if other states create a precedent.
The plain fact is, as I see it, that the man-made global warming adherents are desperate because they have no facts on which to rely. Filing such lawsuits is evidence of their desperation.
Finally, if it is true that “children” are some of the plaintiffs, there is an even greater problem. Children cannot bring lawsuits in the United States. Adults acting on behalf of the children, either as parents or legal guardians, are allowed to bring lawsuits. Using children as plaintiffs brings in an emotional appeal that has no place in a rigorous scientific debate. If there is indeed any harm looming on the horizon, everyone will be affected, not just the children.
It will be quite interesting to follow these lawsuits, and see how many actually make it past the question of standing, past the issue of being a political question that is best decided by the legislature, and into the meat of the merits.
And the winners are – the lawyers.
The ambition to create a law of this type goes back at least to 1975 when the now discredited anthropologist, Margaret Mead, helped to convene a conference under the title “The atmosphere: endangered and endangering”.
She said “….At this conference we are proposing that, before there is a corresponding attempt to develop a “law of the air”, the scientific community advise the United Nations (and individual, powerful nation states or aggregations of weaker states) and attempt to arrive at some overview of what is presently known about hazards to the atmosphere from man-made interventions, and how scientific knowledge, coupled with intelligent social action, can protect the peoples of the world from dangerous and preventable interference with the atmosphere upon which all life depends….
….What we need from scientists are estimates, presented with sufficient conservatism and plausibility but at the same time AS FREE AS POSSIBLE FROM INTERNAL DISAGREEMENTS (my emphasis) that can be exploited by political interests, that will allow us to start building a system of artificial but effective warnings which will parallel the instincts of animals who flee before the hurricane”.
(Perhaps she had a pre-vision of Al Gore’s spinning of Hurricane Katrina!)
This is part of the genesis of the “consensus” – more like the building of a political party than a scientific conference. The scientific activists were to be coordinated (something Dr. Goebbels called “Gleichschaltung”). They were to be free from internal disagreements, all singing from the same hymn sheet which would be carbon dioxide and global warming. Prior to that the consensus had been about global cooling. The CIA had produced a report in 1974 which said that scientists were agreed that Canada, European Russia and Northern China would all be buried under deep ice and snow if human intervention did not prevent it.
As the psychiatrist Heinz Hartmann noted, healthy personality types learn to adapt to their environment, whereas the unhealthy ones insist on the environment adapting to them.
Desperation, in its quirky way, employs “glurge” to make its point. Glurge, as some already know, is “Sickeningly sweet stories with a moral, often hiding slightly sinister undertones” (Wiktionary). Paraphrased, “look at the innocent children, playing, while the evil CO2 insidiously inundates their metaphorical coastline”. The MSM loves glurge. So, they will transmit imagery: innocent babes, tsunamis….emphasising the stark contrast. In a litigation-obsessed country like the USA, that should go a long way.
If you can’t get what you want by being responsible (an apparent chasracteristic of Hoku-Pokus science), Sue.
“…and the ocean levels are falling” You will need to show some evidence for that bold statement.
There already is a precedent for this type on thing.
Your comparison to air space and water ways are in error, both your examples are physically attached to the map. It is the place, not content of the place, that is the object of the trust.
The domain of the object of the trust in question here is not fixed to a map.
Like air there is water.
It is an international political issue, like water in the Great Lakes the object of the domain in question (the air) is not bounded by the border or jurisdiction of one country.
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en.wikipedia.org/wiki/Great_lakes#Great_Lakes_Collaboration_Implementation_Act
The International Joint Commission is an independent binational organization established by the United States and Canada under the Boundary Waters Treaty of 1909.
Great Lakes water use and diversions:
The International Joint Commission was established in 1909 to help prevent and resolve disputes relating to the use and quality of boundary waters, and to advise Canada and the United States on questions related to water resources …
On December 13, 2005, the Governors and Premiers signed these two agreements, the first of which is between all ten jurisdictions. It is somewhat more detailed and protective, though its legal strength has not yet been tested in court. The second, the Great Lakes Compact, has been approved by the state legislatures of all eight states that border the Great Lakes as well as the U.S. Congress, and was signed into law by President George W. Bush on 3 October 2008.
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Two agreements in less than 100 years.
Bring it on!
What global warming desperately needs is “peer review” as in 12 of our peers in a jury (and not a couple of buddies on the same global warming gravy train)
Here is the question, you say that the states can easily defend against these lawsuits, but why would they want to? Many states do not wish to pass AGW laws because they would lose votes, however, they also WISH to pass these laws as it increases their personal power, money, and prestige, since it will require money and increasing control over our lives to do this stuff, and, with the excuse of the “dire emergency” they will be able to requisition this money and seize the power which they desire, with the excuse “the courts forced us to do it”.
So, with so much to gain from being “forced” to “deal” with “global warming”, who in the states will actually want to defend against these lawsuits? If the states put up a deliberatly weak defense, who exactly will appose this, and how, if the states deliberatly ignore calling up any witness who can show that AGW is not happening? Is it even possible to force witnesses on the state who actually know something about the subject if the state, the defendant, does not call them up? If they do not, that evidence will be deliberatly censored from the court by never being heard. The best way to do propaganda without being caught in a lie is not what you say, but what you avoid saying, and making sure that no one else has a chance to say things you don’t want anyone to hear as well.
Thus, the other view if this idea, other than the idea that this will force into legal records that the climate catastrophies are not happening, is the idea that it will allow the states to essentially force an anti AGW dictatorship on the people, having obtained legal justification for ignoring the will of the people and doing whatever they darn well please.
The only way around that is for at least some states to have leaders who know that AGW is not happening, and who can watch their own lawyers like a hawk to make sure that they do not get bought by the money and power of the AGW side, and then to make sure that this gets all the way to the supreme court. This will not be easy, because AGW promises so much to so many bureaucrats who are in all state governments that the leader would find that many of his followers are actively trying to sabotage his defense against this lawsuit.
So, who exactly will be ‘defending” against this lawsuit, and why?
Frankly these suits are simply “vexatious” – a publicity stunt by venal lawyers and idiots who simply cannot bring themselves to accept that they have no evidence to support their ridiculous claims.
Hopefully the legal system will reject them all as being a waste of time and money.
So they think that they can prove AGW beyond a reasonable doubt? Let ’em try it.
It must be said that some outriders in the legal fraternity are willing to go to any length to make a buck.
The negotiation of the Acid Rain Treaty between Canada and the United States were concluded by Prime Minister Brian Mulroney and President Ronald Reagan before 1989.
The Acid Rain treaty between Canada and the United States was signed by George H. W. Bush in 1991.
It was an International Political Agreement concerning the content of the air.
The United States Environmental Protection Agency Acid Rain Program was a required for the United States to meet its Treaty obligations.
In spite of what Wikipedia has to say on the issue, it was not an EPA idea. The EPA was compelled to act by an Existing International Political Agreement.
The International Political Agreement came First.
One of the central issues in this (whether there is a manageable, justiciable remedy for alleged “harm” to the atmosphere as between states) is already before the US Supreme Court in American Electric Power et al v. Connecticut et al. Oral arguments were taken on 19th April and the Court opinions are now awaited: see http://www.scotusblog.com/?p=118227.
The fundamental flaw is that the US represents only some 6.5% of global land area. Without multi-national treaties the US cannot regulate or enforce standards outside its territoral boundaries – but in the same way as sea navigation, the atmosphere is international. However it will be interesting to see if a court tries to make any finding on the validity of the science.
Legatus says: May 5, 2011 at 12:37 am
So, who exactly will be ‘defending” against this lawsuit, and why?
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I would expect Canada for one, to have standing since we have a long history of sending our excess cold air down there and we are going to be packing it with carbon dioxide. We would want to prevent any extra-territorial law suits that concerned the contents of Our Air that we freely provide to the United States to prolong the skiing season and give many of you a white Christmas.
Our farmers may also be concerned that your unilateral reduction in the amount of carbon dioxide you send in return represents a non-tariff barrier aimed at reducing grain yields and raising the price of Canadian wheat.
/sarc (sort of)
They’ll need to sue China and India as well, indeed because while the U.S. CO2 output has peaked somewhat, that of other countries has outstripped the rest of the world’s.
Another problem is the U.S. government itself, including the military. Huge generators of CO2, but suing the military? Good luck with your subpoena for fossil fuel use.
Even if all US states dramatically reduced their co2 output China and other countries would simply replace it. This is a waste of time.
In the face of such a suit, I can imagine that some governments would readily concede. They are then absolved of blame when energy taxes and cost of living begin rising, and jobs go elsewhere.
as the greens keep saying follow the money.
For the lawyers involved – Ka-ching!
The main defense point must be that our production of CO2 is so small in comparison to the natural producers it has no measurable effect.
It also beggars belief that we, humans, are always divorced from the natural in the alarmist’s eyes. It is as if we are some supernatural incarnation that should be on some other planet. We are all part of the natural world, including the alarmists.
If they want to chase this, all the FOI calls could become open to the court. 🙂
Their total lack of any proof, and the fraudlant manipulation of data etc etc will become blatantly obvious to EVERYONE ! (although its obvious to anyone who actually looks)
Produce the evidence !!!!
Do they really want that?
I very much doubt it.
One might make the argument that it is of great benefit to have an increased carbon dioxide level to help feed the world. We should be trying to get the CO2 level to 1000 ppm.
Friends:
There is a real risk here.
Legal evidence and scientific evidence are very different.
Expert opinions of available technical information are evidence in a law court, and the most authoritative of those opinions are accepted as being “facts”.
Empirical data are evidence in science, and the data are accepted as being “facts” unless and until other empirical data disproves them. Interpretations of the data are opinions that have equal worth (regardless of the expertise of the opinion holders) so long as the opinions are consistent with the data.
Courts of law do not evaluate scientific evidence (how could they?). Instead, when confronted with conflicting interpretations of a technical issue, law courts evaluate the expertise of the holders of expert opinions. So, in a court of law, the Expert Witness with the greatest authority in a technical field provides the technical “facts” which the court accepts as being the most definitive legal evidence.
The Kingsnorth Power Station trial in the UK demonstrated the seriousness of the problem that the nature of legal evidence provides for those who want scientific evidence assessed in a court of law.
Eco-terrorists had attacked the power station by cutting through its boundary fence to effect entry, then climbing its chimney and painting graffiti on it. This cost the owners of the power station much money for repairs, removal of the graffiti and – most importantly – having to close down the power station while the eco-terrorists were removed. These facts were not disputed.
However, the law of England allows a person to damage another person’s property if that damage is needed to prevent more serious harm; e.g. a door of a burning building may need to be smashed to rescue a child trapped in the building, or property may need to be destroyed to create a fire-break that will stop progress of a fire that is out of control, or… etc.
The eco-terrorists claimed that the carbon dioxide emissions from the power station are causing severe climate change which is much more harmful than any harm and costs caused by their attack on the power station. Indeed, their case was that the interruption of the power station’s operation induced by their attack was a greater benefit than the costs and damage of their attack.
This case (presented by the eco-terrorists) is clearly untrue – it is ridiculous – according to available scientific evidence. But they won their case and were acquitted.
Their acquittal resulted from Dr James Hansen travelling to the UK to attend as an Expert Witness for their defence. He is Head of NASA GISS and, therefore, is a very authoritative Expert Witness. The government of the USA has appointed Dr Hansen to that position and, therefore, the government of the USA has declared that he is a supreme authority on climate change effected by power station emissions.
In the face of that expert opinion, the court had no option other than to accept the case presented by the eco-terrorists as being true and, therefore, it acquitted them.
Another UK legal case demonstrates the same problem.
A legal attempt successfully stopped indoctrination of children by showing Mr Al Gore’s film “An Inconvenient Truth” in schools without warning that the film was a political document. The UK government was the defendant because it wanted the showing of the film without comment in schools. But the Court found against the UK government because
(a) the UK government agreed that the UN IPCC was the supreme authority on climate change
and
(b) the film did not agree with scientific statements of the IPCC.
In summation:
governments declare peoples’ authority as “experts” by appointing them,
courts accept the words of “experts” with greatest authority as being “facts”,
and law courts decide on the basis of those “facts”.
Hence, defending scientific truth of AGW in a court of law is very, very difficult.
Richard
Bring the CAGW debate into a courtroom.
That will be the end of CAGW.
This should be really, really interesting round of cases. Just the pleadings would be fun. Consider the plaintiffs will be polluters and should be included in the suit as defendants as well as their lawyers. All produce, will produce in the future and cause to be produced huge quantities of the very pollutant CO2 that is key to their case and upon which relief must be granted. This is like merging counterclaims and subordinate claims into the main claim. Thus, we may see the rather odd situation of the defendants attempting to join the plaintiff’s lawyers in a third party complaint. Since any lawyer, as shown, would be a polluter, they could not represent the plaintiff due to conflict of interests (i.e, the Canon of Ethics). This means the plaintiffs will have to represent themselves. Then, wouldn’t a motion demanding the plaintiffs be joined with the defendants be proper?
Another interesting area is interventionists. For example, suppose the court somehow allows a suit to go forward. Then it would be proper for those with lawns and gardens to intervene as either plaintiff or defendant. After all, CO2 is well known to be a plant food. Any reduction in CO2 will directly decrease their plants and all future plants from critical nutrients which dramatically reduce their production, etc.
Passing note. This is civil so the “rule of 51” applies. It’s equivalent to winning an election by only one vote – the one with the one vote more wins it all. Same in just about all civil cases.
The ones to defend an action against a State is the Atty Gen of the State. I believe all are elected offices. Thus, the Lefy/Greenie AGs are in the political arena directly. Given CA is a dead state anyway, any AG that performs poorly will be, imho, toast at the next election.
Then, there’s the likelihood of adjacent States intervening as well. After all, climate is, well, effected by world wide things like winds, PDOs, etc.
As the Brits are oft to say, great fun, what?
Zorro says:
May 5, 2011 at 12:21 am
And the winners are – the lawyers.
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Speaking as someone born and brought up outside the US, I have to say that your lovely country appears sometimes to have been founded by lawyers for lawyers.
All the best.