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.
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
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?
Can that group of attorneys be sued for filing frivolous legal actions that will waste a lot of our tax money to deal with?
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.
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.
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).
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.
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.
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.
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.
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!
“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.
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.
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.
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.
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
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.
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.
“With climate change regulation dead or nearly dead …”
I’m a Brit. That really hurts.
“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
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.
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….
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
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.
Expect a public relations propaganda campaign to support the global warming claim in court.