Desperate Measures, Indeed

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.

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88 thoughts on “Desperate Measures, Indeed

  1. 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.

  2. 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.

  3. 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.

  4. “…and the ocean levels are falling” You will need to show some evidence for that bold statement.

  5. 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.

    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.

    Two agreements in less than 100 years.

  6. 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)

  7. 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?

  8. 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.

  9. So they think that they can prove AGW beyond a reasonable doubt? Let ’em try it.

  10. It must be said that some outriders in the legal fraternity are willing to go to any length to make a buck.

  11. 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.

  12. 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.

  13. Legatus says: May 5, 2011 at 12:37 am
    So, who exactly will be ‘defending” against this lawsuit, and why?

    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)

  14. 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.

  15. Even if all US states dramatically reduced their co2 output China and other countries would simply replace it. This is a waste of time.

  16. 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.

  17. as the greens keep saying follow the money.

    For the lawyers involved – Ka-ching!

  18. 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.

  19. 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.

  20. 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.

  21. 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

  22. 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?

  23. Zorro says:
    May 5, 2011 at 12:21 am

    And the winners are – the lawyers.
    *******************************
    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.

  24. We come to bury CO2, not to praise it. The evil that gases do are in the imaginary future, the good is oft interred in the recent past. (Apologies to W Shakespeare)

    There must be some “good” that CO2 does……, like a real measured and ducumented worldwide increase in cereal grain yields per hectare over the past 50 years which probably would correlate well with the consistent increase in atmospheric CO2 over that period. That “good” could be shown to improve the lives and health of millions of people worldwide. The “evil” has yet to be demonstrated in real terms.

    http://www.nationmaster.com/graph/agr_cer_yie_kg_per_hec-cereal-yield-kg-per-hectare

  25. I’m not very familiar with the law suits brought buy tobacco companies against governments and researchers wanting to act on the detrimental effects of smoking. However, given how vigorously the tobacco companies tested the scientific studies in court, I would have thought some sort of legal precedent has been set on the level of scientific evidence required before a theory/hypothesis can be considered ‘beyond reasonable doubt’.

    Given that climate scientists can’t test and reject the null hypothesis associated with human emissions of CO2 causing dangerous climate change, then they would fall well short of the level of evidence attained by medical researchers on the health effects of smoking. How do you scientifically test if the climate we are experiencing now, and into the future, is any different to the climate we would have experienced without human CO2 emissions?

  26. Can that group of attorneys be sued for filing frivolous legal actions that will waste a lot of our tax money to deal with?

  27. Judges can sometimes enforce science when all the “experts” are locked into pseudo-science. About ten years ago a federal judge convened a remarkable conference that completely knocked out the pseudo-scientific claims against silicone breast implants. It did stop the frivolous suits, but it was basically too late to help the companies that had already gone bankrupt.

    Unfortunately I doubt that any rational judges will get to hear these cases. The plaintiffs won’t even have to “shop” carefully, because the vast majority of federal judges are hard-line Gaian fanatics who will automatically approve every stage of the suits.

  28. When i first saw this story, I was sickened at how they are using KIDS as plantiffs in this case, even though the kids have NO CLUE What is going on with the Climate. This is just a pure and simple Power grab.

  29. EPA was compelled to act on the Acid Rain issue by Congress with the passage of the Clean Air Act Amendments of 1990, not by an international treaty. No international treaty by itself compels an executive agency to act. It is the ratification of a treaty by Congress that compels US action. This is why the US was never bound by the Kyoto Protocol. That said, the international agreement with Canada on Acid Rain went hand in hand with the Clean Air Act, and the two formed a mutually reciprocal agreement on acid rain in North America. (along with legislation in Canada requiring internal Canadian action).

  30. I’m waiting for the insurance companies to start refusing to cover damage due to global warming. Then as every major storm is attributed to this cause, no coverage. They only need some indisputable evidence, such as a legal precedent such as this. The saying “be careful what you wish for” comes to mind.

  31. Speaking as someone with legal expertise, these lawsuits are idiotic and should all fail long before they get to any evidentiary phase. It would be hard to see how even the most sympathetic judge could greenlight one of these – I suppose it’s possible, but if that happens it will get quickly knocked out on appeal.

    Here’s the legal problem: Thank you, TimC, for mentioning American Electric Power vs. Connecticut. THAT is what is driving all of this – arguments were heard on April 19, and the Supreme Court Justices appeared *Very* unimpressed.

    http://www.nytimes.com/gwire/2011/04/19/19greenwire-states-emissions-nuisance-argument-seems-to-fa-30406.html

    Here is where the legal technicalities come in – *all* important general air quality precedents (as opposed to very local complaints, such as noxious fumes from a single factory that cause direct harm to its neighbors) agree that since the atmosphere is shared by the States, this is an interstate issue and thus should be heard in Federal Court, not State Courts. But the main Federal Case is already before the SCOTUS – and all Federal decisions are going to be bound by the precedent they set.

    Their real problem is that the Federal case looks like it has already been fought and lost – hence their move to run to the various State courts. But that’s backwards! State courts have not the authority to override a Federal decision on an interstate issue. In fact, that’s not the only problem – the legal doctrine of Preemption, most recently seen in the immigration legislation battle, holds that when the US Congress has enacted enough legislation to regulate an industry, or created an agency such as the EPA to act on it’s behalf, then the States are pre-empted by Federal policy and neither their legislatures or their Court systems may interfere with it.

    They’ve filed these cases because they know they are losing the precedent-setting Federal case. But the fact that they are losing AEP vs Connecticut means that all these follow on cases HAVE to be thrown out sooner or later, and most probably sooner.

    Nothing but a stunt – an idiotic, time wasting, money wasting stunt.

  32. Edward Spalton,
    Please provide any links to the role of Margaret Mead in starting this travesty.
    That a corrupt anthropologist would be a player in the corruption of climate science is amazing but not surprising.
    These sorts of connection must must not be over looked. The history of this scientific disaster needs good documentation.

  33. This article mentioned but did not discuss at any length the legal requirement to show that global warming is a bad thing — that is, causes harm. So far no anti-warmist groups have gone after this assumption the way it deserves to be attacked.

    There are lots of probable good effects when the earth’s climate warms. In addition to the obvious ones — longer growing seasons, more places to live (we can settle Greenland like the Vikings did) — a warm climate shrinks the worlds deserts, creating more arable land. Consider that during the ice ages when climate was colder, paleo-climate experts have established that much more of the earth’s surface was desert than is now the case. The dry areas of today’s middle east and north Africa were “hyper arid”, the northern part of South America was desert (!) and large areas in the high latitudes of the northern hemisphere had little precipitation of any sort (no rain or snow), turning into large circum-polar deserts. Then the ice ages ended, the climate got warmer, and these deserts disappeared or got smaller. There is no reason to suppose that this process would suddenly stop if warming continued.

    It is easy to understand why this happens. During the ice ages the sea level was lower, so there was less ocean surface for water to evaporate from, and of course colder water evaporates more slowly. On land, water was locked up inside glaciers, with no easy way to re-enter the atmosphere as water vapor. Hence there was less water vapor in the air, less precipitation, and more land area turned into desert. You do not need large computer models to follow this reasoning — it is accessible to anyone of reasonable intelligence, including members of the legal establishment. If the climate were to continue to warm, then, according to this reasoning, glaciers would continue to shrink, the oceans would continue to rise and get warmer, precipitation would continue to increase, and the deserts would continue to shrink.

    The wishful assumptions of climate alarmists that a warming climate is automatically bad news comes from an unacknowledged and purely emotional desire that nothing ever, ever change. This assumption may well be the biggest and most easily understood weakness of their legal arguments and could be turned into a devastating political argument against their point of view. It has the added advantage of being true.

  34. The first point, harm to the plaintiffs, would also be a sticking point as civilisation booms in warmer periods.
    One would have to try to argue that the individual plaintiffs concern over their current/future lifestyle proves more detrimental to society as a whole than the historical records of civilisation booms and busts during warmer/cooler periods. The judge that takes on that concern would have to have a day pass to green central and no concern over future career. It’s like asking to pass a judgement that will abolish history as we know it on the basis of an individuals concern.

    The whole idea is a mockery as lawyers would have to represent the majority of the worlds population in a class action rather than the individual as we all share the same air. It would be impossible to stipulate between school child in Ca and a terrorist in Pakistan. Try running that through the Supreme Court!

  35. “The Clean Air Act, which was last amended in 1990, requires EPA to set National Ambient Air Quality Standards (40 CFR part 50) for pollutants considered harmful to public health and the environment.

    The US Supreme Court ruled in April, 2007 that EPA had the authority to regulate the emissions of CO2 and other greenhouse gases under the Clean Air Act of 1970, as amended. The Supreme Court decision was based on the potential endangerment which could be caused by climate change driven by CO2 and other GHG emissions, rather than on direct human endangerment resulting from exposure to these gases.

    EPA issued an Endangerment Finding regarding greenhouse gases in December, 2009. (http://www.epa.gov/climatechange/endangerment.html) The language reproduced above states that EPA must now set an NAAQS for CO2 as well as the other listed greenhouse gases. (http://www.fao.org/newsroom/en/news/2006/1000448/index.html)

    EPA has already been petitioned to set the NAAQS for CO2 at 350 ppm. (http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Petition_GHG_pollution_cap_12-2-2009.pdf)

    Fortunately, the NAAQS process includes an “escape hatch” for exceedances resulting from “pollution” from non-state sources, including non-US sources such as China and India. Unfortunately, each US state would have to comply with the NAAQS, with the exception of “pollution” from non-state sources, even in the face of continuing increases in emissions from those non-state sources.

    An NAAQS set at 350 ppm would arguably require not only the total elimination of CO2 emissions by each US state, but also the installation of facilities deemed capable of reducing atmospheric CO2 concentrations by ~40 ppm below current levels during the compliance period. Presumably, the capacity of the US facilities to remove existing CO2 from the atmosphere would be limited to the capacity to remove CO2 from “state sources”.

    Historic NAAQS compliance periods have been less than 10 years.

    Regardless, absent a dramatic change of course by the developing world, the actual atmospheric concentration of CO2 would continue to increase, though arguably at a somewhat slower rate than would otherwise have occurred.

    The International Energy Agency (IEA) has estimated that the investment required to stabilize atmospheric carbon concentrations at ~450 ppm by 2050 would be ~$45 trillion over and above the business as usual scenario; and, could be more than double that amount if technology advances do not occur as rapidly as they project. (http://www.iea.org/techno/etp/fact_sheet_ETP2008.pdf)

    The FACT that the atmospheric concentration would not actually be stabilized, since accomplishing that is clearly beyond the capability of the US, would have no bearing on EPA’s enforcement of the NAAQS.

    The only advantage of an NAAQS which is clearly unachievable in reality would be its susceptibility to being overturned by the courts, which still appear to retain the ability, if not the willingness, to separate fantasy from reality.

  36. The Warmongers are getting ever more desperate, ever more hilarious in their attempt to inflict their religious views on the world.

    When this fails, I predict they will go next to public floggings.

  37. It has been apparent to me all along that climate “science” has NEVER been about science…it has merely been a means to an end. In this case, the CAGW movement is attempting to use dubious studies, research reports, and scientific “press releases” as a way of forcing people via legislation and lawsuits to adopt a specific lifestyle choice favored by the radical environmentalists. This is the end game – and if we treasure our freedom and liberty in this country, they MUST be defeated.

  38. I’m sure when a few lawyers set eyes on this they turned to Dollar signs and a loud ca-ching sound could be heard.

  39. All:
    God save your majesty!

    Cade:
    I thank you, good people—there shall be no money; all shall eat
    and drink on my score, and I will apparel them all in one livery,
    that they may agree like brothers, and worship me their lord.

    Dick:
    The first thing we do, let’s kill all the lawyers.

    Cade:
    Nay, that I mean to do.

    Henry The Sixth, Part 2 Act 4, scene 2, 71–78

  40. Very good. Now I know what kind of suit we should counter with when the greenies try to stop wolf-pack lethal control here in Wallowa County. Protecting the livelihoods of children and women. The loss of income alone should be enough, given that ranch profits are being eaten up with round the clock cowboy patrols, and the added expense regarding wolf fencing. Further more, because of wolf-packs getting closer and closer to human contact, we can no longer allow our children freedom to roam their own ranch land. I have no doubt the defending lawyers are all over this in preparation for the sure to come lawsuit against wolf-pack lethal control measures.

  41. We need to be concerned with what we in the U.S. — and others — “put” into the atmosphere. Pollution of the atmosphere is and has been a problem in the U.S. and in most countries says someone who grew up choking on Los Angeles “atmosphere”. Bring on the laws that lessen “real pollution”, encourage technological development to control and harness “it”, and “require” (yeah, we need some laws) entities to “develop responsibly”. This is one of the tasks our used-to-be-environmental organizations used to take on. But develop we must.

    Fraud: claiming that human-produced CO2 in the atmosphere is a pollutant causing any significant global warming, and developing public policy (laws, lawsuits) as a result of the fraud.

    Jail these individuals — every single one. Put out of business those fraudulent non-profit organizations — every single one. I am ready to start fresh. We are in a new era of abundance. These law suits are from the hanger-ons of the previous era of “scarcity” (you know, peak oil, live off taxes, and such).

    Americans are ready for the new era of responsible opportunity, abundant natural resources and technological know-how such that there is no “shortage of stuff” (chiefio.com — E.M. Smith) and we can contain pollution. Prosperity, as well as liberty and justice, for all.

  42. “With climate change regulation dead or nearly dead …”

    I’m a Brit. That really hurts.

  43. “the plaintiff must show that 1) he either has been harmed or is imminently likely to suffer harm”

    This part fails from the start as there is no current harm that can be shown, it cannot be vague allusions and must point to specific examples and cases, and all future harm is pure speculation with NO basis in fact. Computer models are programmers wetdreams.

    The law suit is a non-starter. DOA

  44. The radical environmentalists really do not like people at all and believe that the majority, say 9 out of 10 should go away (die). A good start would be for them to lead the way by example. – Problem solved and life would be good for the rest of us.

  45. Let’s see, maybe a modest payment of $50 from the 50 States or Uncle Sam to each U.S. citizen would be in order. That would be at least something to offset the damage each of us will be experiencing in some way at some time in the future.
    BTW, that’s a total payment of around $15 Billion. The lawyers usually get a third – or $5 Billion.
    All in the nobel service of mankind….

  46. HUNTER,
    If you Google
    The atmosphere Endangered and endangering 1975 Margaret Mead Research Triangle Park North Carolina
    you will find a number of relevant articles.
    Regards

    Edward

  47. We are more than just likely to be harmed by climate laws & policies based upon hidden or secret Model formulas that can’t predict even the weather, let alone the climate. We will be harmed as we will be forced into a set of circumstances that outlaws sucessful adaptation and rewards fatal errors.
    The Courts can and should reward the defendants, and deny the plaintiffs the means to put the Atmosphere into public trust.

  48. Expect a public relations propaganda campaign to support the global warming claim in court.

  49. So much for the science….
    …and the EPA

    Now the science of global warming is going to try and prove it in court.

    …this is truly pathetic

  50. How does the trespass/land title legal maxim of “cuius est solum, eius est usque ad coelum et ad infernos” (“whoever owns the land owns it all the way to the heavens and to hell”) affect this?

    Although there’s usually law to prevent frivolous trespass suits against airplanes that trespass unusable airspace, isn’t the air above private land still privately owned, and therefore unable to be a public trust? And conversely, air above public land would be owned by the state?

  51. Agree with excellent comments above that this campaign is a stunt and, knock wood, every judge before whom any of these cases may come, will dismiss with prejudice, and assess the plaintiffs all costs and require them to make defendants whole. AND write letters of complaint to the relevant state bar association against the plaintiffs’ lawyers for stirring up vexatious, baseless litigation that wastes the court’s time and brings the practice of law into further disrepute (if that were possible).

    Since kids are being used as strawman plaintiffs that may be a fraud on the court or at least another example of how the suits are calculated to waste time, the nominal plaintiffs having to be replaced with legally-viable ones; and also of how the suits are calculated to bring the law into disrepute, by injecting false sentimentality and media attention into what should be a serious engagement over weighty matters.

    Also since kids are being used, there may be child abuse issues? Imagine the lawsuits in years to come by the children, traumatized and haunted by the ineradicable experience and reputational injury, having been used in this way.

    Truly extraordinary. I hope we’re not being too optimistic in reading this as the final twitchings from the brain-stem.

  52. This is a publicity stunt, nothing more.

    The following is a quote from the complaint filed in Washington State:

    “Immediate action is imperative. Once we pass ever-nearing tipping points, feedbacks will be triggered exacerbating the conditions of the already accelerated heating of the planet and we will then not be able to prevent the ensuing harm. A failure to act guarantees the collapse of nature. Nature has sustained our life here, but the catastrophic consequences of our changing climate can result in a planet totally foreign to human civilization”

    This is a complete joke.

  53. and so we see how foresighted are the proponents of AGW in making triply sure to validate the legitimacy of the ‘experts’.
    those whitewashes were about preventing any precedent of error/fraud in the performance.
    when Monckton failed to sue, he gave them a huge comfort.
    they have been ‘making paper’ all the while – and nobody has successfully done the same back at them.
    the courts believe the paper.
    the skeptics have no precedents to cite against the experts – therefore have no legal weapons useful in court.
    it’s always a mistake to ‘forgive’ an enemy. that enemy has defined his nature as predator on you. there is only one relationship you, as host, can have with a parasite.
    to pretend otherwise is to submit and be consumed piecemeal.
    laws are backed by threat of force and real deadly force. of course the awg gangsters are going to seek control of that machine. even as opponents shy away from using institutional thuggery, the awg crowd was bred nurtured on the notion that they are meant to force their will on subhuman deniers (of their lawful agenda). the state is their protector and friend. Attila loves his witchdoctors as much as they love him.
    so who paid income tax this year? thanks for supporting the destruction of western civilization. can’t own up to what you did? little wonder. must be some element of denialism there, eh?

  54. Gary Mount says:
    May 5, 2011 at 3:06 am

    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.

    You’d be correct in your argument. Unfortunately, there are forces out there that want the population reduced significantly; that want to seize control of the Earth’s resources; and that want to rule without effort or contribution those of us who remain. That’s why blogs like WUWT are so important.

  55. There *is* a better chance than many may think of sanctions against the attorneys filing this claim, *if* they don’t drop them after the final decision in AEP vs Connecticut is delivered, thus establishing binding precedent on the matter.

    (aside – that’s why they almost certainly knew that they had to get those things filed now for any PR benefit, before the AEP v Conn decision is final)

    Here’s a very recent case where an attorney and his client sought damages from the US govm’t for causing the 9/11 attacks and hiding the evidence, the so-called “truther” claims.

    http://www.ca2.uscourts.gov/decisions/isysquery/89164008-5d27-4165-addf-881e4209b8bd/1/doc/10-1241_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/89164008-5d27-4165-addf-881e4209b8bd/1/hilite/

    Not only was the case thrown out with an unusually sarcastic and dismissive opinion issued by the Court, now *both* the attorney and his client are facing fines and legal sanctions for having wasted the court’s time with such nonsense.

  56. Legatus says:
    May 5, 2011 at 12:37 am
    So, who exactly will be ‘defending” against this lawsuit, and why?
    =============================================================
    Despite all reasons given in this discussion for these lawsuits to fail, what Legatus says still haughts me. Can anyone give reasons why the states would fight these suits?
    Certainly, the arguement that Federal regulations prempt the states action seems a compelling one, but what would prevent the Feds from saying the air is public trust?

  57. Any chance this could finally get that missing data the FOIA requests haven’t turned up? Mann would have a bit of a headache ducking subpoena’s and being cited for contempt in 50 states…

  58. Mr. Sowell, “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”

    A link from Mr. Watts to a graph on Steven Goddard’s blog(http://stevengoddard.wordpress.com/2011/05/04/experts-arctic-ice-is-melting-faster-than-had-been-predicted/) shows your statement to be demonstratably false. It makes it hard to take anything you have written seriously when you include such false statements in your article.

  59. This will be where the fun begins, as each side trots out their experts and makes their case.

    Indeed, if in the process, a defense team member says he/she can’t get some data from somebody on ‘the team’ and then the judge orders all data and records available to the defense.

    Maybe this will be the way to get 100% transparency from those scientists?

  60. @Gary Swift: if that is the substance of the complaints (filed in every state and in DC) then the good news is that these, with AEP v Connecticut when decided, must essentially exhaust all possible judicial branch remedies.

    Pleaded this way (“failure to act guarantees the collapse of nature”) must mean that plaintiffs will have to prove the essential validity of the science and of their contentions – but also that the US courts (a) will first accept the novel “public trust” legal theory and (b) will be able to create and manage an effective remedy when 93% of the world’s land mass lies outside their jurisdiction (as arguably does 100% of the world’s atmosphere, as gases flowing unknowingly and uncontrollably across any artificial land borders).

    I suspect this is actually attempting to get more leverage over the other branches of the US government.

  61. Legatus says: May 5, 2011 at 12:37 am
    Here is the question, you say that the states can easily defend against these lawsuits, but why would they want to?
    ——————————————–
    This is scary

    Richard S Courtney says:
    May 5, 2011 at 3:27 am

    Friends:
    There is a real risk here.
    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”.
    ————————————–
    This is really scary. There seems to be a real possibility that these well-meaning but wrong people could bring down US competitiveness in particular and Western Civilization in general. Shades of Tom Clancy’s Rainbow Six. There’s a slippery slope of ever-tightening EPA rulings to control ever more activities that emit CO2.

    But I have a potential solution. That is the possibility of declaring government expert witnesses to have conflict of interest. Only disinterested (retired?) experts can give credible testimony.

  62. >sceptical says:
    >May 5, 2011 at 10:48 am
    >Mr. Sowell, “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”

    A link from Mr. Watts to a graph on Steven Goddard’s blog(http://stevengoddard.wordpress.com/2011/05/04/experts-arctic-ice-is-melting-faster-than-had-been-predicted/) shows your statement to be demonstratably false. It makes it hard to take anything you have written seriously when you include such false statements in your article.

    ++++++++

    Just checking what you mean: The “Arctic ice is melting faster’ story – do you mean to say the oceans are not cooling? Please check with the ARGO project which shows they aer indeed cooling. Did you mean Arctic ice is melting because of warmer temperatures? Do you have some chart(s) showing increased temperatures in the Arctic? We would all like to see them becase no one is systematically measuring the temperature up there. The water is certainly not statistically warmer, even in summer. Were you perhaps hinting that ocean levels are rising because of ‘melting Arctic ice’? We here are all well aware that floating ice does not raise the water level (Archimedes and all that). Are you aware that the ice cap on Greenland is increasing in mass over most of its total area? Ditto Antarctica? Perhaps you believe otherwise.

    I am just trying to find out what it is you are asserting. I do not agree with the statement that the ocean level is ‘falling’, it is the RATE of increase that is falling, and it looks like the rate of decrease in rise, is increasing (see recent WUWT thread). Very clearly a curve.

    But to hold that the inverses of the rest Sowell’s statement are true – that is going to take some ‘proving with difficulty’.

    “The facts that CO2 continues to rise,”
    True
    ” and the global [True] and regional temperatures are falling,
    True
    ” and the ocean levels are falling,”
    Not true: the rate of increase is falling, though alarmists say it is increasing, against all the evidence
    ” and the ocean temperatures are falling,”
    True, check ARGO which was established to determine the ocean temperatures.

    On balance, your rejection implies more falsehoods than Mr Sowell’s assertions, unless you are intending something else. Feel free to explain.

  63. “Who pays the lawyers when their cases fail?”

    Joe Romm and his pals at Think Progress. heh.

  64. Good luck with these goofy lawsuits in Washington state. We just had the officially coldest April on record. Our local farmers are anxiously hoping for a little of Al’s global warming, but May forecasts are for more cold and rain.

  65. A society which makes television heroes of litigation lawyers is obviously a sick society.

    The fact that this is bringing cute litigation on behalf of the morally and unscientifically indefensible against real people does not change the above statement.

  66. Let us say that this, or another of the many legal ettempts to ram AGW measures through (such as the EPA) eventually succeed.
    And let us say that the sun, the major driver of any warming (duh!) continues it’s recent funk.
    And let us say that this results on what it resulted in the last two times, a “little ice age”.
    Do you really think that after all this political capitol expended on “proving” AGW true they will just own up and say “my bad”?
    We now have the following situation, increasingly unpopular controls and taxations to “prevent warming” coupled with everyone noticing just how cold it has been getting lately.
    Result, an increasingly restless population controlled by an increasingly dictatoral and corrupt government that wishes to stay in power and continue to enjoy it’s recent gains in power but is seeing that endangered by the restless populace.

    Sound familiar? This is the state of a large part of the countries of this earth. The solution those countries have followed is to find someone to blame so as to fix the peoples hatred on s0meone other than the real culprit, their own government. Fixing hatred on an outsider this way also allows the government to crack down on dissedents by saying that they are spies of these external powers. Worldwide, the most popular blame targets are the USA and Israel (such that shark attacks off the coast of Egypt can be called zionist trained agent sharks, and have the people actually believe this). This is usually coupled with complete control of the press as agents of ceaseless propaganda.

    So I see a likely scenerio:
    The ‘economic downturn” (caused at least in large part by governmet action, such as turning a blind eye to and aiding and abetting a housing bubble since it increased their tax revenue, just as they did to the preceeding internet bubble) continues.
    It is further accelerated by anti AGW measures, ie by yet more government interference and regulation and taxation.
    Result, another “great depression” (considering that the USA has lost a full quarter of it’s industrial production in the last 10 years, we are probably already in one, we are just using borrowing to put off noticing it).
    This is further helped along by the little ice age resulting in decreased food production, resulting in further “restlessness” as desperate people try to find someone to blame (in the dark ages and little ice ages, witch burning was popular). The government may also blame the cold on AGW (why not, they blame it for everything else).
    In the “current emergency” the governments (“free” ones anyway) seize the opportunity to impose emergency powers, helped along by the fact that they already have prepared the groundwork with their anti AGW “emergency powers”.
    Getting control of the press is easy, most of it is already on their side, simply find some justification for shutting down the dissenting voices, like, oh, say, this web site. One can use some sort of internet regulation, selectively applied, to do this.
    Meanwhile, as government unions riot to preserve their priviledges (just as they did in pre nazi Germany), the government can ally with them and form them into a political and/or military force (“brownshirts” in Germany). They can then be used to assure the rise to power of the “great leader” (the one most effective in promising to get us out of this mess).
    Result may be a few things that work better, the trains may run on time, but most everything else will be worse.
    But people will be given convenient scapegoats to blame, and complainers will be silenced, so you won’t actually hear any complaints.
    If there is too much scapegoating, the targets of that may decide they don’t like it (and they are likely to have you as a scapegoat as well), result, war. War, after all, wonderfully focuses the attention of the people on someone else.
    To prevent war and possibly to “fix the problem” an attempt at world government may be made, result, a huge draw as the worlds most corrupt bureaucrats are drawn like moths to the flame of absolute power.
    Result eventually, even bigger problems, quite possibly resulting in world war three, as people get really desperate and demand action, and the political class gets equelly desperate to find someone to blame.

    Now, all this may sound extreme, but the verdict of history has seen very similar things. For instance, during the little ice age, in France, the people, being serfs, had little freedom, and so were not able to adapt to the cold and resulting crop losses as others had (by switching crops), result, the French Revolution, which promised freedom and gave a dictatorship and war. Also, the similarities between the current USA and “The Weimar Republic”, pre nazi Gemany, are striking, including the government union roits where government workers decide that the will of the people, expressed by their voting in governers who wish to at least slow down the rise of the unions workers saleries (and pensions, and benifits, and pensions, and political control over what the government actually does far greater than the voters, and did I mention pensions?) should be overthrow with violence (they would make great brownshirts).

    In short, the scenerio I mention above may not come down exactly like this, but I think I can saftly say that, if government gains enough power to ‘stop global warming”, and then we see ourselves in a little ice age plus a great depression (aided by anti AGW government crackdown), something really bad is going to happen, and history shows the most likely scenerios look something like above.

    If we are lucky, there will be no little ice age (although there is likely to be at least an ice age scare like in the 70’s, possibly covered up) and all we will have to deal with is a great depression and dictatoral government, without the extreme pressure of billions of people noticing how cold it has been getting.

    In short, if the propaganda meets up with a (literally) cold hard reality, and the propagandaists try hard enough to hang on to their power, we are in for “interesting times”.

  67. Crispin in Waterloo, as you admit, one of Mr. Sowell’s assertion is shown on this site to be false. The rest of what I quoted from him is also false despite your claims to the contrary, but nice to see you can admit that part of Mr. Sowell’s post is false. Doesn’t this give you skepticism as to the rest of his post?

  68. Aggressive litigious campaigns don’t have to work in the court, in my view. All they need to do is win one well-publicized case. The threat of the lawsuit and costs will effectively cause states to move to comply out of desire to avoid being sued – or so complicitous politicians can say. This tactic is used by the ACLU to control school districts all of the time.

    However, a counter campaign can advise states of their legal options and hit back with up-to-date information the court losses on the same legal actions. Two cents.

  69. Ha ha…,

    they are sowing the seeds of their destruction.

    If they incredibly go though with the lawsuits.They are going to show the world what they really are.

    Fanatics.

    That will hurt them in the long run.

  70. @ tobyglyn on May 5, 2011 at 12:29 am

    ” “…and the ocean levels are falling” You will need to show some evidence for that bold statement.”

    Response: the sea level data from sealevel.Colorado.edu shows a mix of ocean level trends, with some point locations rising, but some falling since the satellite measurements began in 1992. For example, my previous investigations for the data along the California coast shows a decrease in sea levels, not an increase. However, even the global mean sea level trend has stabilized since 2006, and shows a slight downward trend in some of the individual ocean basins. For example, the trend for the Pacific Ocean shows +0.23 mm/year since the end of 2005. However, there is a significant spike in the data for the last half of 2009, which is highly questionable as to its accuracy. Without that data spike, the trend since 2005 shows a decrease of (minus) -0.18 mm/year. By “without that spike,” my meaning is to manually adjust the data downward by 10 mm, starting with the data point labeled 2009.5741 and ending with 2009.927. This hand-correction opens up a can of worms, as criticism can be leveled at why should the correction be made only for those data points, and why choose 10 mm as the adjustment? Why not make similar adjustments to low-lying data?

    My response to those arguments is that the data appears to have outliers, far beyond the normal range of data oscillations. In my professional experience as an engineer, such outliers deserve special attention to determine several things. First, do they indicate a problem with the measuring instruments? Second, if there are no instrument problems, was there a data transmission or recording or transcription error? Third, if none of those problems exist, and given what we know to be true in physics and engineering, is it physically possible, or even probable, that such a change in the measured parameter could happen in such a short time? Fourth, when a trend over time is the critical question, what is the impact of having the outlier included, and then excluded in that trend calculation? This last question is especially critical when the outlier cannot be explained.

    This is a long way of saying that I don’t for a minute believe there was an upward spike in the actual sea level in the last half of 2009, across the entire Pacific Ocean. We may never know, of course, as it is impossible to go back in time to take the measurements again. We cannot repeat the experiment, in other words. Therefore, everyone can make of this what they choose. Some, of course, will disagree with me and they have every right to do so. I can see an inflection point in the global mean sea level trend, somewhere around the middle of 2005, as many others have noted and written on. What was a clearly rising trend suddenly became a zero trend, or with a slight declining trend if the apparently spurious spike in 2009 is taken away.

    Thus, my statement that the ocean levels are falling. And, this is occurring even with a continuing increase in CO2. As developing economies consume greater quantities of coal, the increase in CO2 should escalate. If the warmists were correct, ocean levels should be rising at a greater rate. Clearly, they are not. Such evidence would be great fun to present in a court of law.

  71. @Legatus on May 5, 2011 at 12:37 am

    “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”.”

    Response: As California’s experience has shown, the climate change laws invite legal challenges – lawsuits. The state is expending resources defending these lawsuits, and when AB 32 was suspended recently for not having followed the proper legal procedures in its inception, some consternation arose. My belief, and hope, is that electoral sanity will take hold in other states – it’s a lost cause in California, though – so that any legislator who votes for any climate change law will be held to account, and made to understand that a Yes vote will see him or her out of office at the next opportunity. The AGW or CAGW belief system has run its course, and the evidence is simply not there. More and more people realize this, and place far more importance on pressing issues such as having a job, paying their bills, obtaining decent medical care, and education for themselves and their children.

  72. @ Maverick on May 5, 2011 at 1:02 am

    “So they think that they can prove AGW beyond a reasonable doubt? Let ‘em try it.”

    The legal standard of proof for these type of lawsuits would be much lower than beyond a reasonable doubt. That standard is used in a criminal trial. For these civil lawsuits, generally the standard is “a preponderance of the evidence,” or simply put, 50 percent plus one.

  73. @ sceptical on May 5, 2011 at 10:48 am

    “Mr. Sowell, “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”

    A link from Mr. Watts to a graph on Steven Goddard’s blog(http://stevengoddard.wordpress.com/2011/05/04/experts-arctic-ice-is-melting-faster-than-had-been-predicted/) shows your statement to be demonstratably false. It makes it hard to take anything you have written seriously when you include such false statements in your article.”

    Sceptical, you make a good point, but I stand by what I wrote. Please see my earlier response regarding ocean levels falling. You may not agree, of course. What is very convincing to me about the falsity of the entire issue of man’s-CO2-causes-the-earth-to-warm was the study done a few years ago (1992) in California, where long-term land-based temperature trends were segregated by degree of population increase in each county. There were three categories, first was essentially rural areas with very little increase, second was counties with a modest increase, and third was counties with very great increases in population. The results showed essentially zero temperature increase in the first category, the rural areas. There was only a modest increase in temperature in the second category, and quite a large increase in the counties with large cities. I’m thinking that this was the J.D. Goodridge study? Perhaps someone can reference that study.

    I also did some followup of my own and posted the results on my blog, see http://sowellslawblog.blogspot.com/2010/02/usa-cities-hadcrut3-temperatures.html . The same results obtain, that is, the Urban Heat Island (UHI) effect is what is causing the apparent increase in measured air temperature.

    Another convincing argument, to me, is the ground-breaking work done by our host Anthony at WUWT with his assessment of the appalling state of temperature measurement stations. No wonder there has been a “measured” increase in temperatures, given those amazing siting problems.

    Yet a third convincing argument is the excellent work done and posted on the web by E.M. Smith, at his blog chiefio.wordpress.com. Smith posted a wonderful series of articles on what he named “The March of the Thermometers” and showing a massive drop out in thermometer count over time, and an amazing movement of the thermometers from cold locations to hot locations.

    Finally, my own post on the impossibility of CO2 regulating the earth’s mean global temperature is still the most-viewed post on my blog. In it, I show that, from an engineering viewpoint, CO2 changes cannot impact the earth’s average temperature. I am not alone in this view, but have the agreement of several noted Chemical Engineers with vast experience in the process control field. The opposite view, that CO2 changes must result in changes in the earth’s temperature, require us to suspend our knowledge of how physics works, how process control works, and that is simply not going to happen. Anyone who has ever lit a candle knows how process control works. The flame feels hot if a finger is placed close enough to the candle. However, the finger gets progressively cooler the farther from the candle it is moved. That relationship, close=hot, far away=cool, is never reversed. Anyone what has ever made a campfire or even a fire in a fireplace also knows this to be true.

    All of this weaves together to produce a tapestry that shows there is no climate change problem caused by CO2 in the atmosphere for the world’s governments to solve.

    You may have a different view, of course. I suggest that the evidence weighs in my favor.

  74. Legatus says:
    May 5, 2011 at 12:37 am
    So, who exactly will be ‘defending” against this lawsuit, and why?
    old engineer says:
    May 5, 2011 at 10:23 am
    Legatus says:
    May 5, 2011 at 12:37 am
    So, who exactly will be ‘defending” against this lawsuit, and why?
    =============================================================
    Despite all reasons given in this discussion for these lawsuits to fail, what Legatus says still haughts me. Can anyone give reasons why the states would fight these suits?
    Certainly, the arguement that Federal regulations prempt the states action seems a compelling one, but what would prevent the Feds from saying the air is public trust?

    I think Legatus and old Engineer have a point that everyone commenting seems to have missed.

    What if the first of these suits is held in California – The California State cries “mea culpa” and does not defend the suit. The next is in say Washington State – to the same response – the next in Vermont – and the same response. By the time States that may try to defend the issue are scheduled there could be a dozen or more uncontested and therefore successful legal actions as ‘precedent’.

    I would go further – and suspect that anyone who was well heeled enough to set off up to 50 concurrent legal actions using arcane law, would also be thoughtful enough to already have negotiated with the first of the States to assess their reaction to these suits. What have these States actually got to lose? Losing a case like this would actually provide legal support to action already being taken in California by their administration!

    As old engineer says: “Certainly, the arguement that Federal regulations prempt the states action seems a compelling one, but what would prevent the Feds from saying the air is public trust?” Or more likely what would prevent the States offering no defense and the Federal government sitting on its hands as they support the plaintiffs?

    People should be very concerned – this is not a simple legal action against someone that wants to defend themselves.

  75. Actually, a strict test of the standing principles would be devastating for the warmistas. You only have to consider the “actual or imminent harm” test to see why. Courts try to apply objective tests in the face of disputed scientific facts- it happens all the time in patent litigation. In this instance, since there is no actual harm that can be demonstrated the case depends on the reliability of the predictions that have been made regarding imminent harm. Since one cannot see into the future and test the reliability of current predictions, one must look back and see if the same people made past predictions that proved to be accurate. There, the warmistas have a very poor record. Think “UN Climate Regufees” and “No more snow in the UK”. If the greenies pursue this, they may wish they had not. Of course a great deal depends on the venue and the judges involved, so an irrational outcome (at the district level, anyway) is certainly possible.

  76. I have very serious concerns about using the “public trust doctrine” as criteria to force states to pass climate laws; i.e. limiting energy from fossil fuels. My concern is that the climate issue is barely understood by the scientific community let alone the legal profession. Like so many cases that come before the courts, the legal decision ends up being based on legal merits of public trust doctrines rather than the science of climate because expert scientific witnesses about the role of carbon dioxide negate each other’s testimony. So the judge or jury evaluate the testimonies about the doctrine issue in the absence of any understanding of the strengths and weaknesses of the climate science associated with carbon dioxide as a pollutant.

  77. jon shively:

    At May 5, 2011 at 11:00 pm you say:

    “So the judge or jury evaluate the testimonies about the doctrine issue in the absence of any understanding of the strengths and weaknesses of the climate science associated with carbon dioxide as a pollutant.”

    Yes, please see my post above at May 5, 2011 at 3:27 am.

    Only Dan in California has made a post (at May 5, 2011 at 12:16 pm ) which addresses the seriousness of this problem.

    Richard

  78. Mr. Sowell, your response to sea level rise is unconvincing. You go from making the statement that ocean levels are falling to saying that some gauges show a negative trend and that there might be problems with the data. If you have serious doubts about the data, how can you make statements like “ocean levels are falling”? Same with your response on temperature. You may have issues with the data, but if this is true, how can you make definitive statements from bad data?

  79. to TimC:

    “@Gary Swift: if that is the substance of the complaints (filed in every state and in DC)”

    lol, you should read the rest of it. There are links to the 4 complaints filed up to this point. The web site doesn’t mention filing complaints in any more than a few states in the California area, so I’m not sure where this claim of complaints in every state and DC is coming from. I think that’s a misquote or something. I don’t think this little 6 person grass roots organization can handle that scale of operation. It looks like a social worker, a couple of retired lawyers and a former state environmental worker got together to do this. They can’t even keep thier web page up to date.

  80. @Andrew 30
    I’ve often told my Toronto friend that Canada sends us its cold dry air and we pack it with Gulf moisture before sending it back, and that’s why she gets snow. I’ve always thought the air was rather empty you sent. Thanks for packing it!

  81. @Gary Swift: thanks, but the very first URL in this article (“Full article is at …”) suggests that the intention is to file in every state and DC, to try to obtain legal precedents in individual states.

    It’s not surprising that this is a grass roots operation: I think “wws” above has the most clear-sighted view of it, well worth reading.

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