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.