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.
You inhale today what I exhaled yesterday.
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
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?
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.
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.
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?
Gary Mount says:
May 5, 2011 at 3:06 am
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.
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.
Legatus says:
May 5, 2011 at 12:37 am
So, who exactly will be ‘defending” against this lawsuit, and why?
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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?
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…
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.
“ 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?
Who pays the lawyers when their cases fail?
@Gary Young 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.
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?
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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”.
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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.
>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.
“Who pays the lawyers when their cases fail?”
Joe Romm and his pals at Think Progress. heh.
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.
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.
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”.
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?
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.
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.
@ur momisugly 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.
@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.