How the progressive left intends to use the courts to harass those who don’t agree with them on the climate

Combatting Climate Change in the Courts
by David W. Schnare
General Counsel Energy & Environment Legal Institute

climate-change-pain

On February 10th, the American Constitution Society for Law and Policy (“ACS”) hosted a panel discussion on legal approaches and activities associated with “combatting” climate change through legal action. Topics covered were RICO prosecutions, climate torts and the Supreme Court’s stay of the Clean Power Plan. The session was organized and moderated by Lisa Heinzerling, the attorney who was brought into EPA to manage the legal analysis of how to extend the agency’s powers beyond the limits of the Clean Air Act in order to implement the environmental activists’ climate agenda, and who had previously won the Massachusetts v. EPA case enabling EPA to regulate carbon dioxide. The discussion panel consisted of Richard E. Ayres, Founding Partner, Ayres Law Group, LLP; Co-Founder, Natural Resources Defense Council; Sharon Eubanks, Partner, Bordas & Bordas, PLLC; lead counsel for the United States in United States v. Phillip Morris, et al. (the RICO tobacco case); Matthew F. Pawa, President, Pawa Law Group, P.C., who has failed repeatedly in his civil climate change tort claims against hydrocarbon companies; and the obligatory “other side of the argument” panelist, Roger R. Martella, Jr., Partner, Sidley Austin, LLP; former General Counsel, Environmental Protection Agency and representing parties opposing EPA’s Clean Power Plan. In addition, Senator Sheldon Whitehouse (D-RI) offered remarks.

The session was instructive, even if not in the manner intended by Heinzerling. Before getting to specifics, however, it pays to understand the setting of this forum. The ACS is a very liberal association of legal progressives. It is a young group and its purposes are two-fold – to create the next generation of progressive attorneys and to create a national network useful in influencing judges nationwide. They sponsor over 1,000 sessions a year pushing their agenda. In their own words, they are “debunking conservative buzzwords such as “originalism” and “strict construction” that use neutral-sounding language but all too often lead to conservative policy outcomes.”

As a second introductory note, the audience was equally progressive (like attracts like), consisting of about 60 folks, young and old, representing a diversity from the Union of Concerned Scientists to the Natural Resources Defense Council. The event was covered by Reuters and InsideEPA.

Although last to speak, the keynote message was offered by Senator Whitehouse. He supports a federal RICO investigation and prosecution of “deniers.” His was a political screed based exclusively on a presumption of a scientific consensus that humans are causing climate change through use of hydrocarbons. He believes the tobacco RICO case is the “roadmap” for prosecution of deniers and he looks forward to the day when the CEOs of the coal, petrochemical and electric power industry are marched before the Senate to confess their crimes. Notably, he took no questions, probably because there were some in the audience that had pushed back against the regular panel and he didn’t want to be confronted by them. The take-away from his comments is that he is touting the same broken record on climate and RICO that he has been, but that he is no more than a cheerleader, one without a portfolio to force any kind of litigation against “deniers.”

Sharon Eubanks was the first to speak and offered the most useful content. She began with the unfounded assertion that RICO could be applied to hydrocarbon companies and anyone who received grant support from them and anyone who agreed with them on the issues and anyone who denied anthropogenic climate change or anthropogenic global warming (“ACC” or “AGW”). She later admitted the facts necessary to bring a claim were not in hand and that the Department of Justice was unlikely to undertake a RICO investigation, something RICO authorizes DOJ to do before filing a complaint.

She laid out the essential requirements of a RICO case, and in that she was instructive. First, she explained that any person, formal or informal association, corporation or the like that has a “pattern of conspiracy” shown to participate in “any association in fact” would be subject to a RICO prosecution. If an organization received funds from Exxon to examine and discuss climate change, everyone in that organization would be subject to RICO, as would the beer buddies who discussed the issue over lunch and later went on to offer their personal opinions on the subject that were “denier” in nature, even if the beer buddies didn’t receive any of the grant and were simply using their first amendment right to free speech. Sort of chilling, isn’t it.

Second, to prosecute a RICO claim, there has to be a predicate criminal act. In a civil RICO case, however, this act need not be proven beyond a reasonable doubt, but only by a fair preponderance of the evidence. The typical predicate criminal acts are mail fraud and wire fraud. The scheme to defraud must be shown, but can be as simple as a denial of ACC that allowed the company to make greater profits than if they had admitted their product would cause an end to civilization as we know it. Two or more emails that carry out that scheme are a sufficient pattern of conspiracy to support a RICO prosecution. Any email that supports that scheme (apparently regardless of free speech protections) may be used to include the author of any email as a defendant.

Finally, the remedies vary depending on where one sues. Suing in the United States District Court for the District of Columbia, one only gets injunctive relief in the form of an apology and promise to not do it again. Apparently the massive cost of defending such a case is penalty enough for the D.C. Circuit. But, in other jurisdictions, RICO remedies are considered forward looking and the defendant may have to disgorge all profits associated with their denial. The money goes to the government. (Yes, this is a tax scheme, not really an effort to remedy environmental harm or corruption.)

After explaining the law, Ms. Eubanks offered a few words about how a prosecution would go forward. Absent clear evidence of fraud, there can be no case filed. DOJ can begin an investigation before filing, but a private citizen cannot. A state can conduct an investigation, and that is what will be done in this case, basically out of the New York AG’s offices. That investigation, and case filing, would be followed by an extremely invasive discovery effort. In the tobacco case, the government demanded over 2 billion pages of discovery from the defendants. According to Ms. Eubanks, a single email from a junior employee stating that there is a consensus about AGW and the company is contributing to AGW is sufficient to prove a fraud in the event the company does not admit to causing AGW. This leads to a defense that a junior employee does not speak for the company, but Ms. Eubanks did not discuss that point.

Richard (I created NRDC and am now in private practice making tons of money) Ayres had a simple message. First, he admitted that NRDC and its contemporaries do not have the wherewithal to prosecute such a case. One look at NRDC, EarthJustice or the Sierra Club’s IRS form 990s shows they have, jointly, more than $100 million a year in income. Thus, what he is saying is that they just don’t want to take the case on. They want a consortium of states to do so. Second, he recognized that all they’d get from winning a RICO case is an order from the court telling deniers to quit denying. That, however, seems to be what he wants. Specifically, he stated that he wants to change the meme from “is the science in” to “who is telling the truth.” He was challenged by the audience, one of whom suggested that to “tell the truth” one first needs to know what “the truth” is, which means that one is back to whether “the science is in.” His response was a non-verbal wince.

Matt Pawa spoke to civil tort actions against companies under a negligence theory, “climate change harmed me.” He admitted that they had been unsuccessful with these claims in federal court as the courts held that the Clean Air Act preempted the tort claims. He suggested that cases brought in state courts are the obvious next step, but he apparently doesn’t realize that the states have their own air pollution statutes that also will preempt a state tort. When asked when the next case will be filed in a state court, and where (a Reuters question), he responded, “Any day now, probably after a hot day or when a tornado hits a town. It is going to happen any day now.”

Roger Martella was eventually allowed to speak, and considering the audience, he took a very narrow line, suggesting that past litigation appears to reflect three principles. First, courts are happy to order a government to do something about climate change, but they are unwilling to be specific as to what that should be. This is true both in the U.S. and in Europe. Second, courts are not willing to order decarbonization or energy goals. That is a regulatory matter. They eschew tort claims, finding them preempted by the regulatory schemes. Third, courts don’t want to be triers of facts regarding whether the climate is changing beyond its normal variation or why.

With regard to the SCOTUS stay of the Clean Power Plan, everyone on the panel was surprised at the outcome. Ayers was asked to predict the outcome of the case and stated that the rule would be upheld. Martella, like any sane attorney, refused to predict what SCOTUS would do, but did indicate that obtaining the stay was more than just a surprise. To obtain a stay, the majority of the Court had to reach a conclusion that those opposing the Clean Power Plan would more likely than not prevail on the merits of their claim. That is the high bar the “deniers” had to clear and they did.

And, as a final note, the panel had suggested that there is no legitimate defense argument that climate change litigation is most properly considered a political question. Heinzerling was asked about this since the previous administration was unwilling to issue an endangerment finding and the next administration may well reconsider and reverse the Obama endangerment finding. Her response was that she was 100% certain that no administration would ever overturn the endangerment finding. Of course, she was equally certain SCOTUS would not issue a stay.

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

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125 thoughts on “How the progressive left intends to use the courts to harass those who don’t agree with them on the climate

  1. Terminology is important here. Please use the plain language form of the word. They are going to Persecute thinkers.

    • Also, why do people give the title ‘Progressive’ to these leftists? There is nothing progressive about much of the leftist agenda. It is mostly regressive and intellectually, logically and morally backwards. There is nothing progressive about one side of an issue attempting to shut down discussion and thought about an issue by using the judicial arm of our government to do so. Or, for that matter, using any form of power to shut down any subject which is still not agreed upon between all the parties involved in the debate / discussion. Using an arm of government to shut down debate and discussion concerning a disputed subject which concerns all of society is simply an injustice and absolutely not ‘progressive’. Let’s call it for what it really is… You name it.

      • These ‘so called’ progressives, are a bunch of sick minded witch hunters who are engaging in exactly that which they would vehemently oppose if the shoe was on the other foot. It is getting very tiring and I believe the time has come for this kind of political, social bullying to be put to a stop…A cold, dead and hard stop. It should be called for what it is…Frivolous, without merit, waste of time and politicians and people in a judicial capacity should be prosecuted for wasting taxpayers time in pursuing these type of issues without real merit until there is factual proof that there is a necessity.

      • In America, the Progressive Party was a communist front organization created with the express purpose of ridding the United States of “reactionaries.” See Theodore Rossovelt.

        The Birth of the New Party: Or, Progressive Democracy, Keynote Speech; p. 283:

        “We stand for social brotherhood as against savage individualism. We stand for an intelligent co-operaation instead of a reckless competition.”

        This (from the book) for those who think that the German fellow invented the swastika as a symbol for socialism:

      • When I use words, said Humpty Dumpty, they mean just what I want them to mean.
        You’re dead right. In Libspeak, ‘progressive” means ‘regressive’; ‘freedom of speech’ means ‘saying things I approve of’, ‘debate’ means ‘I tell you how it is’ and so on and so on!

      • Also, why do people give the title ‘Progressive’ to these leftists?

        Word games. Happens all the time. Choose a word or words to name something or what is being done that may have nothing to do with the actual definition of those words. Oppose the “what is being done” in the name of the words they chose and the fall back on the definition of the words they chose to describe their “cause”.
        It’s the title they gave to themselves. What could be wrong with “progress”?
        Government handouts are called “entitlements”.
        “Climate Change”? Of course it does. It always has. Who can say it doesn’t?

      • OK S.:

        The word swastika originates from the Sanskrit word svastika that means “good fortune” or “well-being.” The swatika symbol (a hooked cross) appears to have first been used in Neolithic Eurasia where it is thought to have represented the movement of the sun through the sky. It is now a sacred symbol in Hinduism, Buddhism, Jainism, and Odinism.

        Nobody has ever used the swastika as a symbol for socialism.

        “That german fellow” adopted the swastika as a symbol for naz1ism (i.e. a form of fascism).

        Your link shows that some small American political party calling itself The National Progressive Party was founded in 1912 although few have heard of it since then. It adopted a version of the Manx ‘three legs’ but with an additional leg and winged ankles.

        If you don’t know as much political history as this then it would be best for you not to show your ignorance again.

        Richard

      • Richard,

        I apologize if I stepped on your toes. I really enjoyed your surperior attitude. Your ability to know what I know is amazing.

        This is a skeptic site (though not political), and if that’s what attracted you here, maybe you should apply your skepticism to your politics. Study and figure things out for yourself. You don’t have to believe what you find in Academia (big A), or on Google or Wikipedia. Or what people like me write on blogs.

        A good place to start would be with Theodore Roosevelt’s book to which I linked. Ask yourself why his party is called the Bull Moose Party. Then work backwards in history as far as you care; then work forward to now.

        Just a hint. Think for yourself.

      • OK S. on February 12, 2016 at 8:10 am,

        This (from the book) for those who think that the German fellow invented the swastika as a symbol for socialism:

        OK S.,

        Let’s go to the root source about the symbolism of Hitler’s party flag,

        {bold emphasis mine – John Whitman}

        In his book ‘Mein Kampf’ Hitler said, “Not only because it [the flag] incorporated those revered colours expressive of our homage to the glorious past and which once brought so much honour to the German nation, but this symbol was also an eloquent expression of the will behind the movement. We National Socialists regarded our flag as being the embodiment of our party programme. The red expressed the social thought underlying the movement. White the national thought. And the swastika signified the mission allotted to us–the struggle for the victory of Aryan mankind and at the same time the triumph of the ideal of creative work which is in itself and always will be anti-Semitic.”

        From translation into English here; http://gutenberg.net.au/ebooks02/0200601.txt

        In retrospect, it is easy see how socialists struggle with the facts of that specific implementation of the fundamental concept of all socialism.

        John

      • OK S. on February 12, 2016 at 8:10 am,

        This (from the book) for those who think that the German fellow invented the swastika as a symbol for socialism:

        OK S.,

        Let’s go to the root source about the symbolism of Hitler’s party flag,

        {bold emphasis mine – John Whitman}

        In his book ‘Mein Kampf’ Hilter said, “Not only because it [the flag] incorporated those revered colours expressive of our homage to the glorious past and which once brought so much honour to the German nation, but this symbol was also an eloquent expression of the will behind the movement. We National Socialists regarded our flag as being the embodiment of our party programme. The red expressed the social thought underlying the movement. White the national thought. And the swastika signified the mission allotted to us–the struggle for the victory of Aryan mankind and at the same time the triumph of the ideal of creative work which is in itself and always will be anti-Semitic.”

        From translation into English here; http://gutenberg.net.au/ebooks02/0200601.txt

        In retrospect, it is easy see how socialists struggle with the facts of that specific implementation of the fundamental concept of all socialism.

        John

      • Sorry for the double post of the same exact comment at both ‘John Whitman on February 13, 2016 at 11:47 am’ and at ‘John Whitman on February 13, 2016 at 11:49 am’

        My initial comment went missing without ‘comment in moderation status’ and I thought I hadn’t really posted it, so I posted it again.

        John

    • Well this sounds like a wonderful group of legal scholars.

      I would heartily recommend that they convene another such focus group for the purpose of studying the Constitution of the United States of America, and discussing the specific constraints that it places on the powers assigned to the Government of the United States of America, as enumerated in that clearly written document. I believe it is actually written in the English language, instead of in that mediaeval Roman mumbo Jumbo that lawyers normally use to miscommunicate with. Article nine of the Bill of Rights, is my all time favorite section.

      It says that we the people retain all of our rights that we have not consigned to the Government, by way of that Constitution (in order to form a more perfect union).

      I like that; we have ALL of our rights except those mentioned in the Constitution, as being ceded to the Government

      G

      • @george e. smith

        Hi George. I appreciate most all of your thoughts and contributions to this site… So, pardon me if I misunderstand your post above about convening another focus group for studying the U.S. Constitution. Are you saying that the comments posted previously about the ‘progressive left using courts’, etc. has no place in this forum? If I misunderstood, I apologize.

        I do think that pointing out the fact that so called ‘progressives’ who are using the legal system to shut down discussion of climate change is absolutely relevant to the topic of this post and that defining who these people ‘really are’ is also important. There are many ‘sheep’ who follow a cause simply based on what the “cause” names itself. ‘Progressive” sounds like a good title for a sheep to follow, and so they do, without much thought. Many people become immune to the titles which a ’cause’ or group chooses to use for itself and simply accept the title because hearing it so often makes an association in many peoples minds without knowing that the cause behind it is entirely different or even opposite to the word they associate the cause or group with. I am simply pointing this out and in hopes that more people will scrutinize the titles and definitions which these groups or causes choose to use for themselves and hope that more people will become more aware and innoculate themselves to it. I may be off track here because of the skeptical nature of most of the folks who follow WUWT and I’m preaching to the choir, but I know that I have a tendency to sometimes fail to identify the BS for what it is.

      • @george e. smith
        I took what you wrote to heart and thought your post was directed at a couple of the commenters, including me. I apologize sincerely. When my wife gets moody, I get emotional too … ; )

  2. Big Pharma Big Food has just made a major mistake bring this to Court ! The hearing is also being called the “Nutrition Trial of Century”. That may not be hyperbole. The biggest twist so far has come from the evidence: it is increasingly clear this is a not just a trial of one man, an eminent scientist and a medical doctor, fighting for his reputation on a charge of professional conduct against his own professional body – and against dietitians who don’t want him giving nutrition advice that challenges medical and dietetic dogma and threatens their livelihoods.http://www.biznews.com/low-carb-healthy-fat-science/2016/02/08/tim-noakes-banting-babies-trial-best-outcome-hope/

    It is a trial of nutrition science, the nature and purpose of science and evidence-based medicine, the changing role of doctors and dietitians in the information age, patients’ right to information even if it differs from “conventional wisdom”, academic freedom, freedom of speech, and the very real perils of challenging orthodoxy. The Bad Things Government Do To Our Lives; https://www.youtube.com/watch?v=vRe9z32NZHY

  3. It’s all about money and nothing else. The more they can legally cheat out of the government (the taxpayer)
    the happier some lawyers will be. I’m sick to death of all the yelling, screaming and legal wrangling over a non problem. The first George Bush inadvertently started the whole thing when he succumbed to all the noise of the rabble rousers when he raised the budget for climate research from $600 million to $4 billion in an effort to find out if there was really any global warming. What did he think? They would say that there wasn’t any whit all those bucks up for grabs?

  4. after all the evidence is in and this thing is settled, there will be lawsuits against alarmists whose activism caused economic distress to energy firms and citizens alike.
    in the amount of trillions.
    individuals may be dead by then but their assets, companies, or organizations may survive.

    • Isn’t there enough evidence now to initiate a class action suit against the EPA? Secret e-mails, sue and settle, illegal evidence for the endangerment finding. All of these against your peer reviewed papers, Salby’s work, strong empirical work showing failed models, and now Senator Whitehouse’s unfounded accusations.

    • Given that their basic physics is false , and therefore either quantitative equations or demonstration non-existent , isn’t their colluding like this in and of itself subject to RICO ?

    • I so want to be part of a class action against these so call scientists. They’re scientific papers are so shoddy that their court room blather should be easy pickings. Mike Mann had to make two major alterations to his own claim form because he made obvious lies on the claim form. Nobel Prize winner indeed.

      • my belief is that it began with the anti-concept of ‘states’ rights’ which devalued the concept of rights.
        states have no rights because only individuals can possess them. ‘state’ is not a person.
        the inflation of the concept has proceeded well beyond absurdity.
        few people i meet are clear on the fundamental concept any more.

    • Left-wingers took over the American education system generations ago and have effectively brainwashed millions into believing that:

      War in peace.
      Freedom is slavery.
      Ignorance is strength.

      And now they’re leading the lambs to slaughter.

    • “How did you allow it to get to the stage where this is even discussed.”

      When they banned the Pledge of Allegiance in schools?
      Mu of the slope has been decreasing since.

      • Disagree, The slide started with the pledge of allegiance. Remembering correctly the author was a socialist. Did you ever wonder why you pledge allegiance to the flag and not, for say, to the constitution? Also the original salute was arm out and up like we remember the German salute.

      • Taz,

        You are mistaken. “The Pledge of Allegiance” is:

        “… to the flag … and to the Republic, for which it stands, one nation under God, indivisible, with liberty … .”

        The flag is stated explicitly to be only a symbol of the Republic the liberty of which is codified in the Constitution of the United States of America.

        Socialists have NEVER been about “liberty.” Socialism is about state control.

        That some may have saluted in the past is defunct knowledge, irrelevant to the present in which we now lovingly place our hands over our hearts. And when we hear our national anthem, many of us also stand up and often tears fill our eyes. We love our country, so much.

        And THAT is why there is hope. That is why America is. From the very start, the snarling, plotting, small-minded, anti-Constitutionalists have been screeching through the air, nipping at the wings of the mighty eagle of freedom (the key to our freedom is the Constitution). America flies on, soaring to even greater heights — every — time. The pro-slavery movement was a blatantly anti-Constitution (“states’ rights, my eye — it was about slavery, i.e., money (just like the Envirosocialists/Enviroprofiteers of today) and that was all) coalition. It failed. F.D.R., et. al. came mighty close to turning America into another failed socialist dictatorship-of-the-elite. They failed. So, too, the shrieking hyenas of the above post will, in the end, fail.

        America is.
        *********************************************
        *********************************************
        *********************************************

        Take heart! The immigrants who, year after year the statists attempt to lure into their government handouts opium dens, are among the MOST loyal to the U.S. Constitution’s freedoms: that — is — why — they — came — here.

        {Note: the following video is NOT for those who could watch the BBC video about African child miners I posted on the Amnesty thread a couple days ago and respond, essentially, with, “Meh. Work is good for kids.” — IOW — this video is for those with healthy, intact, emotional, intelligence.}

        “I Love You, America” by Ming Kwok and Vikey Chen

        (youtube)

        America is.

        Those who love freedom (including lawyers) FAR outnumber the legal toads.

        Truth — is MARCHIN’ on! HOO–WAAAAH:

        CO2 UP. WARMING STOPPED.

        With love,

        Janice

      • I also agree with several historians that the constitution was actually the first power coup. It was claimed to be ratified under some rather shady circumstances. Then the alien and sedition act under the second president. These United States aren’t what they used to be and weren’t used to be for very long. We have a long and strong tradition of incremental power grab.

      • yes. the purpose of the constitutional convention was to establish a means of enforcible collection of gold and silver from the states for the ruling elite.
        article 1 section 10 is not about free trade – it’s about collecting tribute for a new ruling class.

        you have to go back to the declaration of independence to find a document that’s concerned with individual rights as a moral imperative.
        the constitution was all about concession – a negotiation that let predation pass as an agreement among parties.

        worship any document at your peril. magic pixels never stop a predator.
        talking about it helps, right? nobody ends up better off, but we can all be reassured that the yoke of serfdom is shared equally.

        wait until you find out that talking is not the same as doing. it will shock your awes right off.

      • Anyone who has seen a new citizen who has just taken the oath, clutching a flag and saying God Bless America, with the tears running down, knows that immigrants make the very best citizens of all, …

        Evan Jones

        (https://wattsupwiththat.com/2008/06/13/june-14th/#comment-19168 )

        Boy, after posting something that meaningful to me and having it overlooked, it sure was neat to be given the gift of coming upon Mr. Jones’ comment today. Thank you, Mr. Jones… almost 8 years later… .

        #(:))

    • “You American’s are f*cked.
      How did you allow it to get to the stage where this is even discussed.”

      What’s amazing is that we’ve lasted this long. Read “Democracy in America” by Alexis de Tocqueville, written in 1835.

    • Well, since we have an illusionary democracy controlled by two crime gangs engaged in a vicious propaganda war amongst themselves and the rest of the world… and our media thinks the Kardashians and the latest movie trailers are more important than the ground war against ISIL or the TPP trade swindle….

      We are in a perpetual war between “liberals” and “conservatives” over fringe issues. This war is kept in motion by The Money to keep us from addressing real issues, such as rampant militarism, government corruption, over-financialization of the economy, etc.

      So what we have here is the Drinkers of the Blue Kool Aid trying to smash the Drinkers of the Red Kool Aid in the courts. That’s really how they see it. It’s not about “climate change”, it’s about political retribution and control. It’s just like when they recently freaked out over the Confederate flag. That had nothing to do with racism. It was just a way to piss on the southern States for voting majority Republican.

      This could be their undoing though. So far, the war against us “deniers” has been fought in the background, in the blogosphere, out of the public eye. Do they really want the press to report them facing people fighting back in courtrooms with facts and not ideology? Do they really want to be seen by the general public as extremists attempting to smash scientific inquiry and free speech? It wouldn’t be the first time in our history that a blatant public witch hunt backfired on the hunters politically.

      • Part of the problem is that people think we live in a “democracy”. We don’t…, and never have. This country was created as a representative republic and is a representative republic. The only things that are democratic in this country is when you go vote for your mayor, town council, school board, state legislators, and U.S. congresspeople and senators. The presidential race is decided by the electoral college. Democracy is little more than mob rule.

    • @J Benton,
      Do you really think any other ‘western’ country is better off? The professional politicians are in a race to the bottom. UK will have grid failures thanks to Milliband and Brown enthusiastically supported and continued by Cameron. These power outs will cause deaths from cold and more industry to leave the country. Germany has hundreds of thousands of families ‘off grid’ due to the costof power from ‘renewables’ and so on. At least in the USA many states have banded together and put a temporary halt to the EPA madness. I wonder if RICO has ever been tried against democratically elected state governments?

  5. Is it not possible that Ms Eubanks “unfounded assertion” could lead also the biter being bit?
    “…RICO could be applied… to anyone who CLAIMED anthropogenic climate change or anthropogenic global warming…”

    • These lawyers are conspiring together to make money based on unsupported claims of global warming, causing damage to multiple industries and raising costs (necessarily skyrocketing ) on everyone. A classic RICO case indeed. Given a change of government, they may wish to be careful with their petards.

  6. Surely like all Politicians and Lawyers (Senator Whitehouse) before “CEOs of the coal, petrochemical and electric power industry are marched before the Senate to confess their crimes” they should put in place a get out of jail free card. I would suggest a week long power/fuel shortage in the middle of winter (especially Washington DC) would focus Senator Whitehouse’s mind (if he has one) on the lunacy of his statement.
    Also could the RICO laws not be used against the LLP firms who champion them against others? They clearly wish to use them and dis-information for gain.

    • UN Impressed. The US Capital has its own Power Plant. In the 80’s my Engineering Company designed a Tertiary Dust Collection System to reduce PM 2.5 from coal firing. The Democrats wouldn’t spend the money then and now they supposedly burn Nat Gas. This in an effort to satisfy the POTUS’s actions to bankrupt the Coal Industry. The lawmakers might be forced to sleep in their offices as the only warm place in DC.

  7. It is worth pointing out that AGW is in exactly the same position that Eugenics was 100 years ago. The institutional support is high. The theory is simplistic (one factor is deemed to be about to dominate all others in a complex system). The debate is politicised.

    How can a court of law distinguish between the truth of AGW and Eugenics? It can’t.

    So they would never dare make a firm endorsement or otherwise of the science. This is going nowhere.

    • You over estimate the “blindness” of Justice. She is no longer blind, but wearing rainbow colored glasses that can see unicorns and “fairness” wood nymphs as well as the tear drops of Mother Earth.

      In Gore vs. State of Florida, the Florida Supreme Court threw out election law and starting writing their own under the premise that people were being disenfranchised.

      It is bad enough when the executive branch is “doing what is right”, but with the judicial branch having joined the drumbeat, our liberty stands on a razor’s edge.

      • Participants are of three. Sheep that ba ba , Wolf that growl snaps at finger food. The whisperer calm instigator – Judas Goat

    • In a rational world, that would be true.
      In a world dominated by socialists, the legal system is expected to support the agenda of the rulers.

      • The legal system always supports the agenda of the rulers. The U.S. constitution originally provided the vote only to whites, only to land owners and only to men. The courts saw no problem with that. Later you had Indian massacres, school segregation, communists were jailed and discriminated against for thought crimes, Japanese — Americans were interred, a new category of prisoners were created called enemy combatants to separate them from prisoners of war who would be protected by Geneva convention. It is important when we contemplate injustices to be on guard against all of them, not just the ones that are inconvenient to us personally.

      • hey richard!
        venezuela!
        can you lead the class in singing the socialist anthem?
        cha cha chavez – your hero and liberator!
        or were you asleep while the latest socialist experiment was performed?
        but they didn’t do it right, eh? why did they not consult you when every socialist experiment ever conducted without your advice ended up adding to the pile of corpses and the ruins of economies? why, oh why?

      • gnomish:

        We on planet Earth like to discuss matters. Please address your gobbledygook to whatever creatures inhabit the planet you live on.

        Richard

      • john harmsworth:

        You claim

        The legal system always supports the agenda of the rulers.

        Except that there are countless examples of countries where the legal system opposed the government.

        In practice legal systems can be subverted. Such subversion is most likely when the judiciary are appointed for limited terms and especially when they are elected (so re-elected).

        The Law is decreed by the Rulers but it is interpreted and applied by the legal system.

        Richard

    • My fellow Courtney: Your comparison of Eugenics and AGW is spot on (you’re English, right?) and a sharp insight. Unfortunately, Progs have been going to our courts with specious arguments and getting what they can’t get from elected folks for many years. Latest example just the other day, Supreme Court issues stay on coal regs. by 5-4, after lower court refused. A stay on appeal should be fairly routine in most cases, particularly where gov’t appears to overstep its bounds to damage industry (or individual). Lower court should have issued stay, and all 9 justices should agree, yet it was 5-4. Also agree courts have no place in this, but Prog. lawyers keep going back, and have a track record of success over time. This has diminished our legal system, probably beyond repair. I hope it goes nowhere, it should go nowhere, but these folks will not stop and our courts don’t stop them. Last quick example, Mann v. Steyn et al should have been thrown out and I believe will be, but court will not punish Mann or his law team for bringing this frivolous suit. Prog. lawyers are very confident of this, believing they can file RICO action and keep it going for yrs with no consequence. Only hope I live long enough to see U.S. Courts revive their limited role. For some strange reason, I always notice the posts of you and that Richard fellow.

  8. the State Govt of Victoria in Australia asked CAGW-infested Baker & McKenzie to review the State’s climate policies.
    ***the “climate change charter” is not one of their most appealing recommendations:

    12 Feb: Age: Tom Arup: Victorian climate laws face massive overhaul including new emissions targets
    Victoria’s climate change laws face a major overhaul, with an independent review recommending the state
    establish new targets to cut emissions, put in place a legally binding charter on government decisions
    and give the environmental watchdog powers to limit greenhouse gases, among other sweeping reforms.
    But the Andrews government, which commissioned the review, has immediately ruled out setting up a
    state-based emissions trading system or adopting a “shadow carbon price” on government decisions, which
    were both floated in the review’s recommendations…
    ***Under the proposals there would be a “climate change charter”, similar to Victoria’s existing human
    rights charter, which would be given legal force so groups could take the government to court if they
    felt global warming had not been considered…
    http://www.theage.com.au/victoria/victorian-climate-laws-face-massive-overhaul-including-new-emissions-
    targets-20160210-gmqyss.html

  9. There is a silver lining – RICO applies to the environmentalist and alarmist organizations in the same way as to everybody else. Their interpretation of RICO might serve as an additional evidence against them.

  10. Will the progressive right resist this persecution, or cooperate? There is not a spit of difference among the Ruling Parties, good-cop bad-cop played on the political stage. Read Angelo Codevilla’s essay America’s Ruling Class — And the Perils of Revolution (Spectator, 2010)

    • Thanks for the reminder about that essay. Nothing has been resolved economically, and the wheel has just about made a complete revolution. The rise of Trump and Sanders are not reflective of nothing.

  11. The session was organized and moderated by Lisa Heinzerling, the attorney who was brought into EPA to manage the legal analysis of how to extend the agency’s powers beyond the limits of the Clean Air Act in order to implement the environmental activists’ climate agenda, and who had previously won the Massachusetts v. EPA case enabling EPA to regulate carbon dioxide.

    How does that work? How does the EPA lawfully fund such exercises to expand its mission (mission-creep) when its funding may only be used for previously-designated purposes?

  12. I understood that trials were based on testing evidence.

    This group of lawyers seem to have abandoned this precept.

    Anyway many would argue that the Law, a purely human construct, is unfit for unravelling the laws of Nature.

    • Reminds me a story i saw where some manual for San Diego city worker’s were told not to refer to Washington, Jefferson, Adams etc as “Founding Fathers” for PC reasons.
      In looking for a link to post here I saw that, to his credit, the mayor of San Diego ordered the … uh … offending passage removed from the manual as soon as he heard about it.
      (Hopefully, whoever put it in to begin with will also be removed.)

  13. “Lisa Heinzerling, the attorney who was brought into EPA to manage the legal analysis of how to extend the agency’s powers beyond the limits of the Clean Air Act in order to implement the environmental activists’ climate agenda”. This illegal on its face. The intent is to go past the law, to violate it.

  14. Comparing the “coal, petrochemical and electric power industry” to the tobacco industry is a bit specious.
    Tobacco is a product that one voluntarily uses or not.
    I’m guessing these gasbags would be complaining the loudest if those industries stopped providing their product.
    This is the real organized crime ring. They just want a piece of the ‘action’

  15. Could not the same theories be employed by conservative groups to challenge those organizations and individuals who continue collectively to propagate the fiction that is global warming?

    • Oh yes indeed:

      Racket (crime)
      “A racket is a service that is fraudulently offered to solve a problem, such as for a problem that does not actually exist, that will not be put into effect, or that would not otherwise exist if the racket did not exist. Conducting a racket is racketeering.”


      Racketeer Influenced and Corrupt Organizations Act

      “The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them in doing”

      United Nations could suddenly find themselves at the epicenter.

      Here is a related post at Judith Curry:
      Accountability for Climate Change Damages: Is Fossil Fuel Like Tobacco?

      I was kind of surprised by my own comparison of United Nations with the Tobacco industry:
      Science or Fiction | November 8, 2015 at 3:57 pm |

  16. Perhaps it is just me, but this entire argument seems inverted. I see the RICO application directed to those who make claims without providing substantiation of such claim as in sharing data, code and process that directly influences government policy? The AGW/ACC claims are setting policy based upon modeled futures from models which cannot model the present. To me, that is the racketeering issue that is being forced into the public domain without proper vetting before implementation. The irony is deafening.

  17. Awfully soory peeps, but for a moment I thought I was reading the prelude to the novel 1984! Groupthink or what? Extremely dangerous ground politically & democratically imho!

  18. It’s an empty threat leveled by Climate Bullies, with the goal of silencing those who would dare go against the Climate Orthodoxy.

  19. Anybody who has ever dealt with any attorney anywhere concerning a civil case will recognize these first words out of his/her mouth. No, they won’t really ask you about the case. They won’t say diddly squat about justice. Or whether you are right. Or whether you can win.

    All of that is completely irrelevant. The first words out of their mouth will be, “How much money is involved?”

    That, and that alone is what determines the case. Search for truth? – Nah. Justice? – Nah. Equal application of law? – Nah.

    Take the money out of CAGW and it will wilt on the vine before you can even blink. But, that’s the trouble; the money’s already there. But, it still hasn’t been enough to satiate their greed. With luck their greed will do them in.

  20. I’m more and more convinced we need to bring back the old-fashioned gas street lamps, the kind that required the services of a lamplighter. Each of these lights was supported by a stout cast iron column and at the top of the column was a substantial crosspiece adequate to support the lamplighter’s ladder. Those crosspieces could also serve to express public disdain and revulsion by providing a place to display an effigy, typically of members of government or individuals whose conduct had violated the people’s liberties. On rare occasions when protest was unavailing the crosspieces were capable of sustaining weights much greater than a straw filled effigy. Installing them on every street in the Capital should receive the highest priority. It would also provide employment for a number of minimally trained individuals perhaps allowing them to pay off their student loans without exposing them to the dangers of a hot grill or fry vat.

  21. Since so many of the “Environmentalists and CAGW proponents” seem to be products of our law schools, and not the Scientific academy, this is not surprising in the least.

    Lawyers represent and are a disproportionate number of lawmakers and tax raisers.
    CAGW is a good excuse to confiscate more wealth for them, while mollifying the taxpayers that their extortions also known as taxes, is being used for a good end.

    No one seems to wonder how increased taxes, reduces global warming. It doesn’t compute.

    • It comes from the same thought processes that decide to right by rewarding those who didn’t actually suffer the wrong, and punishing the uninvolved. It is magical thinking.

  22. “Every generation gets the Constitution that it deserves. As the central preoccupations of an era make their way into the legal system, the Supreme Court eventually weighs in, and nine lawyers in robes become oracles of our national identity.”
    – Noah Feldman

  23. I appreciate how they laid out exactly the course of taking RICO action against alarmists. The climategate emails alone should provide all the evidence needed to take out key players of the scheme, the damage caused is undeniable.

  24. What I find amazing about these “progressive” dopes, is that these schemes always backfire, but they appear completely ignorant of this fact. In Venezuela they have a saying the “every pig meets his Saturday” which is a euphemism for every pig eventually being roasted at a barbecue. In France one could say that every gaoler meets his Bastille Day, or every Robespierre gets his shave.

  25. “According to Ms. Eubanks, a single email from a junior employee stating that there is a consensus about AGW and the company is contributing to AGW is sufficient to prove a fraud in the event the company does not admit to causing AGW. ”

    So a pro-AGW person can get a job with an energy company, write such a letter to frame the employer/company, and if the employer/company does not submit to the narrative all of their assets will be taken? Am I reading that right?

    I think this is beyond whether AGW is real or not, beyond being a tax scheme, I think this is government trying to seize control of the energy sector and make it a state run business. Communism.

  26. The problem here is the “legal” vs. real definition of words; climate change does not equal catastrophic global warming, skeptic does not equal denier, CO2 does not equal pollutant and renewable does not equal effective. As former equal citizen noted (but some citizens are more equal than others) depends on what the “definition of is, is”. Or “I did not accept that grant from Solyndra or sleep with her”.

  27. What Dickens in sardonic mood has to say equally applies by extension to the US, maybe even more so:
    “The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble” (Bleak House).

  28. All things are subject to interpretation whichever interpretation prevails at a given time is a function of power and not truth.
    Friedrich Nietzsche

    No man means all he says, and yet very few say all they mean, for words are slippery and thought is viscous.
    Henry B. Adams

  29. Just waiting for the day that the blue haze is removed from the executive branch, all of the socialist captains of three letter Agencies are changed out like bath water, and the SCOTUS is made more favorable to earnest endeavors by “we the people” vs. “they the takers.” These lawsuits will go the other way and there will be no mercy. Those wreaking heavy handed power being wielded today in the covert interests of socialism should tremble at the thought of the glove being on the other fist.

  30. ‘Progressives’ are progressive in precisely the same way North Korea is the ‘Democratic People’s Republic of Korea’. Which is to say that neither is what it actually claims to be, but just saying it, for those claiming it, makes it so.

  31. He supports a federal RICO investigation and prosecution of deniers
    Maybe he will start with the five conservative justices on the US Supreme Court.

  32. We here in the U.S. Are only 1 or 2 SC justices away from doom.

    The 4 libs, as always, voted in lockstep against this. When Ginsberg dies or retires we cannot have another Sotomayer or closet Roberts on the bench.

    • If by “doom” you mean “I can no longer pollute without compensating the public and the victims”, then you deserve “doom”.

      What right do you have to put anything into the commons?

      • What right do you have to take anything out of the commons? Stop inhaling you thief.

        Further – stop exhaling CO2. That way you will be even more carbon negative.

  33. Neither you nor I has the right to pollute. You cannot simultaneously believe in property rights and the right to dump one’s waste into the commons and other peoples’ property.

    In fact, the court is long overdue in enforcing such property rights. SCOTUS’s decision in AEP vs Connecticut was fundamentally flawed, as it is clear that Congress will take no meaningful action in time for a viable remedy to occur, and even if it did, it would only slightly slow the rate at which peoples’ property rights are being violated, rather than cause a cessation plus compensation for past violations, as should occur.

    Now get your bleep off my lawn. Thanks in advance for respecting my property rights. And before you ask, I deliberately clean up multiples of my own emissions and am hugely carbon negative. You are welcome.

    • i’m wondering how the notion of ‘property’ and ‘commons’ are distinguished so as to ascertain who owns what and therefore has a claim of rights.

    • Marvelous satire! Polluting the “commons” with CO2? A carbon-based being hugely carbon negative? Priceless! And I thought Steyn was funny…

    • chadwick,

      “Neither you nor I has the right to pollute.”

      You just told me I don’t have the right to breath, O totalitarian control freak from hell ; )

      • Heh. I just found a VIDEO of Chadbrick:

        “Environmental Guy” (with Jim Carrey)

        (youtube)

        ***************************

        P.S. JohnKnight — I saw your comment about reading the Gray, et. al. atmospheric chemistry paper — glad you like that. Thanks for saying so (it was too long after you’d posted to try to reply to you there).

  34. Well I think its only fair we have the opportunity to raise a class action to sue all government parties/NGO’s for misappropriation of public funds which they invested in failed renewable ventures.

  35. @JustAnOldGuy

    Your idea has much merit.

    There could be an adjunct industry for the lesser qualified of environmental “science” and liberal arts degrees to attend to cleaning up after the “gaslighters”.

    Yea, I am aware.

  36. Ridiculous! Senator Whitehouse is delusional if he thinks he can successfully use the RICO laws to make skepticism a crime. These people don’t have a legal leg to stand on. They are just blowing smoke. Bring it on!

  37. In their own words, they are “debunking conservative buzzwords such as “originalism” and “strict construction” that use neutral-sounding language but all too often lead to conservative policy outcomes.

    Wow! What spin! We could hook them up to a dynamo and power the world on mini lattes and kale smoothies.

  38. I would like to remind the “ACS” and its cronies Lady Justice is blindfolded and holds a double edge sword. Beware of what to wish for.

  39. {bold emphasis mine – John Whitman}

    David W. Schnare concluded,

    “. . .

    And, as a final note, the panel [February 10th American Constitution Society for Law and Policy (“ACS”) panel] had suggested that there is no legitimate defense argument that climate change litigation is most properly considered a political question. Heinzerling was asked about this since the previous administration was unwilling to issue an endangerment finding and the next administration may well reconsider and reverse the Obama endangerment finding. Her response was that she was 100% certain that no administration would ever overturn the endangerment finding. Of course, she was equally certain SCOTUS would not issue a stay.”

    http://eelegal.org/?p=4600

    David Schnare,

    Wouldn’t, in a civil court of law, the whole panel discussion be evidence that the ACS is using climate change litigation politically to thwart political opponents of its political orientation?

    John

  40. The working man’s definition of “Progressivism”: An intellectual fog that obscures the obvious for socio-political reasons. Hence “climate change” for global warming fraud, “pro-choice” for abortion (murder), etc. The day that they begin to prosecute those who deny “the fraud”, I will stand on top of my car with my AR-15 and scream it until my vocal chords fail me.

  41. This is just too silly:

    United Nations climate panel follows a political process, not a scientific process:
    https://images.duckduckgo.com/iu/?u=http%3A%2F%2Ftse4.mm.bing.net%2Fth%3Fid%3DOIP.Mcfeace8e4bc1308bc0542216817c0f17o0%26pid%3D15.1&f=1

    The report is full of subjective statements:
    https://images.duckduckgo.com/iu/?u=http%3A%2F%2Fipcc-wg2.gov%2FSREX%2Fimages%2Fuploads%2FSREX_SPM_BOX2.jpg&f=1

    And the predictions has been dead wrong:
    https://images.duckduckgo.com/iu/?u=http%3A%2F%2Fwattsupwiththat.files.wordpress.com%2F2013%2F03%2Fhansen88.jpg&f=1

    Denying what exactly – that this is likely a walk in the park???

    Besides – the only ones who has been receiving loads of money to explore their views has been those promoting the views put forward by United Nations climate panel!

    https://images.duckduckgo.com/iu/?u=http%3A%2F%2Fi1.wp.com%2Fwww.powerlineblog.com%2Fed-assets%2F2015%2F08%2Fshutterstock_108119534.jpg%3Fresize%3D500%252C354&f=1

  42. First the so called progressive left destroy the credibility of four of the worlds public broadcasters, now they want to destroy the credibility of the court system. It is time they were given a dose of their own medicine.

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