Law Prof: Climate Lawsuits are Losers: "Cross Examination Is Going To Be Brutal"

Richard Epstein
Richard Epstein. By Kat WalshOwn work, CC BY-SA 3.0, Link

Guest essay by Eric Worrall

New York University Law Professor Richard Epstein thinks political attempts to sue oil companies like Exxon are doomed, thanks to the fossil fuel hypocrisy of the plaintiffs.

‘Cross Examination Is Going To Be Brutal’: NYU Law Prof Says Climate Change Litigation Is A Loser


Karen Kidd

California officials who made dire climate change predictions about their localities’ futures in litigation against energy companies, but not in bond offerings, probably know by now their litigation is doomed, a New York University law professor said during a recent interview.

“My guess is they know they’re going to lose those lawsuits,” Richard Epstein, who also is director of NYU’s Classical Liberal Institute, told Legal Newsline. “I certainly believe they will.”

Those same fossil fuels also help drive the state’s economy, the sixth-largest in the world, Epstein and others say.

Read more:

If Professor Epstein is right, why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?

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February 21, 2018 9:04 am

And why has the California AG sued the Trump Administration more than 25 times? It’s because he can (using my money), because it gets him good press in this state, and because it makes him fell good to be saving the world from the POTUS (or, at least, trying).

David Ball
Reply to  Retired_Engineer_Jim
February 21, 2018 9:13 am

Yes, wouldn’t it be terrible if America were great again, and the rest of the free world benefit from America’s economic strength?

Reply to  David Ball
February 21, 2018 9:27 am

Since, that is the direction America is heading, and the world is benefiting; just what is the sarcasm?
Perhaps, the sarcasm is anti-Trump puffery?

Paul Penrose
Reply to  David Ball
February 21, 2018 11:05 am

The sarcasm is the “terrible” part.

Bryan A
Reply to  David Ball
February 21, 2018 12:10 pm

why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?

In as few words as possible
Deep Pockets
In a few more words…
Because They believe the Oil companies are supposed to Kowtow to their demands and pay to settle instead of fight the allegations.

Reply to  Retired_Engineer_Jim
February 21, 2018 10:22 am

Now if was his own money at stack you really seen if his concern is real .

Gary Pearse
Reply to  knr
February 21, 2018 5:19 pm

Maybe these officials should have at least a small monetary liability to keep them in a sensible zone. If an AG makes a totally losable case out of the blocks, surely the defendant can sue the government for a pile? I’d get Epstein on the payroll. There aren’t a lot of these non-post normal legal beagles left.

Caligula Jones
Reply to  Retired_Engineer_Jim
February 21, 2018 11:40 am

Perhaps we should ban lawyers from becoming politicians….

Komrade Kuma
Reply to  Caligula Jones
February 21, 2018 2:53 pm

but… would there be enough people prepared to stoop so low… and have daily relations with the media?

Reply to  Caligula Jones
February 21, 2018 3:32 pm

Or put a limit on their numbers, say no more than 10% of the House or Senate.

NW sage
Reply to  Caligula Jones
February 21, 2018 5:24 pm

Absolutely NOT! Nowhere else can we find a supply of people who get degrees in, and practice actively, lying [they like to call it representing] so well. This is a necessary attribute for any politician. We NEED a continuing supply of liars!! No one else can get elected. — (cynical – perhaps)

Reply to  Caligula Jones
February 22, 2018 8:10 am

@Komrade Kuma

but… would there be enough people prepared to stoop so low… and have daily relations with the media?

Such a graphic picture you paint.
I certainly would want to stoop so low and have daily relations with the media or the AG’s for that matter

Reply to  Retired_Engineer_Jim
February 21, 2018 12:11 pm

Need a website setup to track how much money is spent ‘Virtual Signaling’

Reply to  smalliot
February 21, 2018 1:58 pm

Virtue Signaling, not “Virtual”.

Reply to  smalliot
February 21, 2018 7:10 pm

One could say virtue signaling is kind of like “virtual” virtue. 😉

Komrade Kuma
Reply to  Retired_Engineer_Jim
February 21, 2018 1:34 pm

Q “why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?”
A Grouptalk, i.e. the tribal imbeciles involved talk, talk, talk the talk talk talk and sooner or later, when the ‘conversation’ reaches that stage of awkward silence think they have to do some walking. They don’t figure that their conversation was moronic in the first place so the actions are even more stupid.

Reply to  Komrade Kuma
February 22, 2018 12:15 am

Progressives aren’t very bright, and it clearly never occurred to the City officials to check that the story they were telling to the court was consistent with what they were saying to bondholders. Huge blunder.

Reply to  Komrade Kuma
February 23, 2018 1:12 pm

the LIV’s just read that the AG is suing, and that is all you need to do to have them on board. They do not follow up and see who wins, and who loses. The act is all that is needed, seen this many times. You have to point out the failure to them, and then they are flabbergasted that their meme is broken:-)))

Reply to  Retired_Engineer_Jim
February 21, 2018 7:38 pm

Yep. I assumed that last question was completely rhetorical.

February 21, 2018 9:08 am

Why? Because some taxpayers like them. Probably enough to win elections.

Reply to  M Simon
February 21, 2018 9:29 am

…and it’s not their money….they look at it as great theatrics

Reply to  M Simon
February 21, 2018 11:31 am

Why? Isn’t it obvious? Because they can?

NW sage
Reply to  Sara
February 21, 2018 5:26 pm

And they find lawyers who are willing to be paid very well to press the lawsuits.

February 21, 2018 9:10 am

Their declarations in the bond offerings directly contradict the claims in these lawsuits.
The question is, which lawsuit will be more painful to lose. This suit against the oil companies, or the suit that is going to be filed by the purchasers of those bonds demanding the interest rates be adjusted and penalties for lying applied?
If there are any smart people in these governments, they are telling the AGs to abandon the suits against the oil companies before any under oath depositions can be taken. Such oaths can and will be used as evidence in any case regarding the bonds.

Scottish Sceptic
Reply to  MarkW
February 21, 2018 10:02 am

That is certainly the logical position, but when has logic ever influences the eco-zealots and eco-goldminers pushing the scam?

Reply to  MarkW
February 21, 2018 11:09 am

From the linked article:

I think they have put themselves into a very hard place …

The probem will come if any of the bond holders decides to sue. IIRC, there’s a rule that says you can’t say two different things in two different courtrooms.

Reply to  commieBob
February 22, 2018 12:14 am

First the gov’t takes contradictory stands all the time and gets away with it. Second, it won’t get to the bond suit. Whomever, wrote the bond definition will not want to risk getting sued or hit w/charges of fraud or perjury. They will testify there assessment was valid, thus invalidating the climate lawsuit.

Reply to  MarkW
February 21, 2018 1:37 pm

I forgot, all court filings are by definition, under oath. If they have already filed papers on this suit, they’re dead.

John B
Reply to  MarkW
February 21, 2018 4:41 pm

They don’t care. “They” aren’t going to be sued, the taxpayers are.

D. J. Hawkins
Reply to  MarkW
February 21, 2018 4:58 pm

@John B
The office holders may or may not be protected from the investors by sovereign immunity, but I bet there are state ethics laws that would leave them hanging out to dry.

Reply to  MarkW
February 22, 2018 4:02 am

Oh gosh !!
Because there is absolutely no history of leftists lying under oath and not being punished.

February 21, 2018 9:11 am

“why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?”
That’s easy, they aren’t spending their own money.
They get the publicity, someone else picks up the tab.
Don’t you just love politics?

Reply to  MarkW
February 21, 2018 9:33 am

This. ^^^^^^

Reply to  CheshireRed
February 21, 2018 11:19 am

PLUS – Not only are they spending public money, Tom Steyer is giving all of these guys private cash in the guise of “campaign contributions” in exchange for them doing it.
You know how “campaign contributions” are spent, right? You put your wife, your kids, and your gay partner if you want on as campaign staff each with a salary of $1,000,000.00 a year. And when all the money is gone, good old Steyer will fill the kitty back up again.

Reply to  wws
February 21, 2018 11:25 am

“Tom Steyer is giving all of these guys private cash in the guise of “campaign contributions” in exchange for them doing it.”
Steyer is a carbon trading billionaire like Lord Stern’s $100 billion hedge fund sugar daddy Jeremy Grantham. They make a fortune from global warming fraud.

Steve R
Reply to  MarkW
February 21, 2018 7:45 pm

They don’t care, they can always float a new bond offering to make up the shortfall.

February 21, 2018 9:16 am

I like “the bond offerings are fraudulent” aspect.

Reply to  M Simon
February 22, 2018 12:23 am

I want to see someone one sue Hansen’s grandkids for playing games on their phones/computers after they filed suit stating CO2 and fossil fuels are destroying the planet. If they truly believe that then they wouldn’t be playing games and watching non-educational TV. I would ask that they be banned from both until 18 by court order. They would have to argue the little fossil fuel they use for non-existential items wasn’t significant while also stating the insignificant amount everyone else uses is.

Zurab Abayev
February 21, 2018 9:19 am

It was predicted quite a while ago by late Michael Crichton in his novel ” The State of Fear”.
One famous American physician said in 1930’s that medicine is 90 percent of common sense and 10 percent of special knowledge. Same applies to any other real science.

Reply to  Zurab Abayev
February 21, 2018 11:35 am

This is actually the book that started my investigation into the scam that is global warming, er, climate change.

Reply to  Zurab Abayev
February 21, 2018 2:05 pm

“Common sense ain’t common”, Will Rogers

Tom Halla
February 21, 2018 9:21 am

I have heard that a curse is “May you be in the right in a legal dispute”. The process itself is intended as punishment, even if the lawsuit goes nowhere.

John Bell
February 21, 2018 9:23 am

The law suits are all conspicuous virtue signalling.

February 21, 2018 9:27 am

Why suits that they can’t win? They win by just filing them. It’s using the court system for harassment. Unless you have deep pockets you can be destroyed financially. Besides it’s virtue signaling to other’s in the nomenklatura. Given the liberal bent of the leftist judges they’re easy to file when they should be laughed out of courts and who knows what a stacked jury of technically ignorant liberals might do?

Alan Tomalty
Reply to  Bear
February 21, 2018 4:06 pm

Excuse meeeeeeeeeeeeeeeee The oil companies have veryyyyyyyyyyyyy deep pockets

Ben of Houston
Reply to  Alan Tomalty
February 21, 2018 5:07 pm

But not limitless. Oil companies are very cognizant about the bottom line, and losing $10 million in legal fees is a major price to pay for what will at-best result in the status quo.

John B
Reply to  Alan Tomalty
February 21, 2018 5:11 pm

Except that it’s the oil company’s money and must be accounted to at the AGM. It’s not the AG’s money and governments don’t really care about wasting taxpayers money.
It won’t become an election issue because the electorate won’t care that your opponent wasted money suing oil companies.

Reply to  Alan Tomalty
February 22, 2018 3:13 am

………..veryyyyyyyyyyyy deep pockets..
The Oil Companies’ deep pockets are connected by a pipeline to Your and My pockets…via the gas pump.

February 21, 2018 9:32 am

“If Professor Epstein is right, why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?”
It’s the same reasons that we are still wasting public money on the ‘trump/russia collusion’ garbage:
They want to believe that they must be right because if they are wrong, their political identity is exposed for the foolishness it embodies.

February 21, 2018 9:33 am

An Ecuador tribe hired a NY legal firm to fight Chevron for oil damage to their land. Unfortunately the legal team thought they could get away with lying and dirty tricks just like environmentalists and climate modellers.
“U.S. top court hands Chevron victory in Ecuador pollution case
While not disputing that pollution occurred, San Ramon, California-based Chevron has said it is not liable and that Donziger and his associates orchestrated the writing of a key environmental report and bribed the presiding judge in Ecuador.”

Reply to  Eric Coo
February 21, 2018 9:58 am

The damage occurred long after Chevron had left the site.
Chevron left the site because the government kicked them out so that the government could keep all the profits for itself.
That Chevron was not responsible was easy to prove.

Reply to  MarkW
February 21, 2018 11:23 am

yep. In actual fact, the Government owned oil company was the one that had done all the environmental damage that they accused Chevron of causing.
The best part was when the Judge in the Peruvian case, where the hoaxsters had won, admitted that his decision was written by Donziger and his pals, that he had taken a big payment in exchange for letting them write it, and that not only had he never read it himself, he didn’t even understand some of the language and terminology used in it.

Alan Tomalty
Reply to  MarkW
February 21, 2018 4:13 pm

The world court in the Hague should issue an arrest warrant and Interpol should enforce it and extradite Donziger for racketeering. Lawyers shouldnt be allowed to get away with this. The world has become lawless.

Reply to  MarkW
February 21, 2018 6:27 pm

I’ve always said that the primary purpose of the legal system is to enrich lawyers.
Justice, when it happens, is just a by-product.

Reply to  MarkW
February 24, 2018 6:47 am
Meanwhile, Donziger has desperately tried to enforce the corrupt Ecuadorean judgement in other countries. [Chevron has no assets in Ecuador, so Donziger could not enforce it there.] In January 2017, an Ontario court rejected an attempt to enforce the Ecuadorian judgment against Chevron Canada Limited, a totally separate legal entity that was not a party to the Ecuadorian lawsuit and not named in the judgment. [Donziger evidently clings to the hope that the Supreme Court of Canada will overturn the Ontario ruling by flouting centuries of corporate law precedents.] Attorneys-General offices in Argentina and Brazil issued opinions in April 2016 and May 2015, respectively, to their courts recommending against recognition of the Ecuadorian judgment in those countries because (in the words of Brazil’s Deputy Prosecutor General) it was “issued in an irregular manner, especially under deplorable acts of corruption.”
[end of excerpt]
I am not surprised that Donziger tried to get compensation from Chevron in Canada.
The justice system in Canada is utterly corrupted. It is hamstrung by deceit and delay tactics, which are encouraged by the courts to the benefit of the “law business” and the detriment of the public.
Perjury and Fraud Upon the Court is rarely discouraged, and so has become the standard tactic to deceive the judiciary and delay proceedings. Rules of evidence are routinely ignored and false allegations are accepted by judges as evidence and form the basis of their rulings.
The selection of judges in Canada is reportedly among the least transparent in the developed world, and judicial appointments can be made to reward political party fundraisers and other favorites.
Some of my colleagues are convinced that judges are routinely “bought” in big-money legal cases, as was the case against Chevron in Ecuador where the judge was bribed to falsify the judgment. I have no opinion on this point in Canada, but do observe that the entire law business in Canada is remarkably incompetent, and corruption (in addition to incompetence) may be one of the contributing factors.
Rule of Law is a shambles in Canada. The lesson here is “sort out your problems outside the court system”.

Reply to  MarkW
February 26, 2018 6:43 am

Canada Is Corrupt When it Comes to Choosing Judges
05/05/2014 01:08 EDT

February 21, 2018 9:34 am

Epstein didn’t mention the main reason cross examination is going to be brutal : the plaintiffs have to demonstrate conclusively that 1) the country had reasonable or practical alternatives to the energy sources supplied by the defendents and that somehow the defendents blocked these fictitious energy sources from being used – namely, what did the plaintiff govts do in all this? Secondly, the plaintiffs will have to demonstrate that the energy sources supplied by the companies have actually caused harm, not in the speculative future, but at this time, and conclusively. And if they have, what alternative was available that could have avoided that?

D. J. Hawkins
Reply to  arthur4563
February 21, 2018 5:06 pm

I doubt that’s true. My guess, if they decide to push on, is they’ll try to make the case on strict liability grounds. No matter how careful defendants were, no matter that there was no alternative energy sources, no matter if defendants were even entirely ignorant of the alleged harm, the existence of the harm flowed directly from defendant’s actions. It will at least provide entertainment. Excuse me while I check my pantry for pop-corn…

February 21, 2018 9:47 am

It seems to me the most obvious defense would be that oil companies are accused of knowing of GW danger at a time when a coming ice age was the main concern, as witnessed in 1971 by Obama’s own adviser. –AGF

Reply to  agfosterjr
February 21, 2018 10:16 am

Cross exam: “If the federal government had mandated on Exxon’s advice that every gas pump display a label: ‘internal combustion in your engine could be hazardous to your future health,’ would that have deterred you 30 years ago, or would it deter you today, from filling your tank? Did you fill your tank in the past week? You did? Do you blame this lapse of judgement on Exxon?”

Reply to  agfosterjr
February 21, 2018 10:36 am

first question objected. “if” irrelevant.
others: “no, I stopped.”
last question:
“I blame Exxon on failing to tell me the hazard it knew about. Exxon Knew. I build all my way of life on the lie (by omission) of Exxon, now I have to change it, which is much more difficult, costly and time consuming that if I had build it that way from the very start. “

Alan Tomalty
Reply to  agfosterjr
February 21, 2018 4:16 pm

I relish those lawsuits. Exxon will get to destroy AGW once and for all in a court of law.

Reply to  agfosterjr
February 21, 2018 6:29 pm

Unfortunately what will happen is that the state will present evidence that the various “scientific” bodies, all say that AGW is real and it is dangerous. Then the court will just stipulate that it can’t disagree with the experts and accept that position. There will be no cross examination of the the AGW sc@m.

Y. Knott
February 21, 2018 9:51 am

… why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?
– Two words – Virtue Signalling. All to the good when it’s on somebody else’s dime.

February 21, 2018 10:20 am

Law Professor is right! I suspect the real reason behind deBlasio’s fake law suits is extortion. In this case the Oil Companies sited (not those with offices in NYC) in the fake suits hold millions to a few billions in NYC bonds. deBlasio’s scheme is to 1) deny payout on the current bonds and cancel them, 2) re-issue bonds at substantially higher prices (NYC Climate Taxes), longer terms and lower payout interest.
If So Facto: Book’m Dan-O.

February 21, 2018 10:20 am

“Virtue Signalling”–A great description of compulsive behaviour.

February 21, 2018 10:23 am

I don’t trust the USA legal system is this respect.
We are talking of a system that inflict punitive damage to MacDonald for not telling that hot coffee they sell is hot, indeed, so you shouldn’t take the lid off!
Plaintiffs have to demonstrate conclusively that oil companies have big pockets (check), that they sold gas to the plaintiff (check), and that they lured the plaintiff into believing the practice was safe just by failing to mention some effect they were aware of, that, if the plaintiff knew, would had taken into consideration and changed his behavior (so the simple failing to mention hurted the plaintiff).
Pretty much the same rationale as this lawsuit against Apple for failing to tell customers that they managed the battery, maybe the way the thought the best, but without telling the customer.
Check or not, that is the question. The whole “exxon knew” campaign was a way to have jury members ready to accept the claim.
And it would very imprudent to think the case is easy win.

Jim Allen
February 21, 2018 10:26 am

“If Professor Epstein is right, why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?” Because they can’t get their citizens to pay more taxes, so they’re left with the alternative of trying to extort others with money and a less attractive public relations profile. You don’t actually expect them to reduce spending, do you?

February 21, 2018 10:30 am

So far no one has actually gone to court…. nor do I believe they ever will. My guess is the charges will be dropped and the plaintiffs will claim “pressure from big oil and their overwhelming available assets to litigate”. The oil companies won’t take it any further just like they’ve done so far.

Reply to  markl
February 21, 2018 1:22 pm

Except Exxon filed suit against all the lawyers involved in Texas court individually (not in their official capacities). They intend to inflict as much process damage to the individuals as they were hoping to inflict on Exxon.

Reply to  OweninGA
February 21, 2018 2:33 pm

There’s a thing called ‘abuse of process.’ It provides, if proven, for huge damages and penalties against the original plaintiff. IIRR, Mark Steyn has a similar countersuit going against some numpty whose name I can’t remember.

Reply to  OweninGA
February 22, 2018 9:42 am

Man, are you ever forgetful…

February 21, 2018 10:36 am

Climate lawsuits are mere episodes of posturing by intellectually-challenged, immature brats, wasting time, resources, and money.
Harsh, perhaps, but I say this as a progressive-minded person, formerly brainwashed by the CO2 catastrophism narrative.
Oh, I guess I forgot to consider that employment prospects for upper-tier lawyers improve with such episodes. Job creation? — there are better ways.

February 21, 2018 10:39 am

Why are they pressing forward with these lawsuits? Two words: “public money”.
The politicians and lawyers are not spending THEIR money, but public money.
The politicians looks at this as a way to pad their resumes, and possibly jump start a political campaign. That was the apparent motivation of the NYC Prosecutor when he wanted to look into “Exxon Knew”
The lawyers are getting paid, so are encouraging it.
But it is public money. The lawyers and politicians have no skin in this game..

Alan Watt, Climate Denialist Level 7
February 21, 2018 10:42 am

It would be interesting if Chevron were to buy bonds from these same states and acquire standing to sue them for federal securities violations, based on false statements in the prospectus. They could only defend one claim by refuting the other.

February 21, 2018 10:47 am

Do I hear class-action lawsuit from the bond investors yet?

4 Eyes
February 21, 2018 10:51 am

Why? because even though their lawyers know they will lose they want to submit a big bill. Lawyer integrity, lawyers social conscience at work.

D. J. Hawkins
Reply to  4 Eyes
February 21, 2018 5:10 pm

Contingency fee. They don’t collect if they don’t win. Poor decision on the law firms’ part.

February 21, 2018 11:14 am

I think these lawsuits were just virtue signalling, but Exxon and others called the bluff.
Which is funny as heck, because the standards of evidence in court is a LOT higher than et standards of ‘evidence;’ in green propaganda.
“Mr HighUpPersonInExxon, is it not true that your company evaluated the issue of Anthropogenic climate change years ago and knew exactly what its effects would be?”
“That is so.”
“And yet you failed to change policies or warn your shareholders of the adverse effects it would have in the environment and your stock price”
“Objection. Learned counsel is not posing a question, merely leading the jury”
“Objection sustained. Please ask direct questions”
“Why did you not change policies or inform your shareholders of the adverse effects it would have in the environment and your stock price”
“Objection. Learned counsel is posing a leading question again”
“Objection sustained. Please ask direct questions”
“When were you aware of the adverse effects Climate Change would have in the environment and your stock price?”
“Objection. Learned counsel is posing a leading question again”
“Objection sustained. Please ask direct questions”
“Were you aware of the adverse effects Climate Change …?”
“Objection. Learned counsel is n posing a leading question again”
“Objection sustained. Please ask direct questions”
“Did your research into Anthropogenic climate change reveal adverse effects to the environment and stock holders values”
“Are you denying that Anthropogenic climate change has negative impacts on the environment, and that attempts to address it would lower your stock price?”
“Which – Anthropogenic climate change has negative impacts on the environment..?”
“No what?”
” Anthropogenic climate change has no negative impacts on the environment. Our research shows that it has no measurable impact on anything.”
“And what about the impact of renewable energy on the fossil fuel market?”
“Our research revealed that renewable energy would have minimal impact on the market for fossil fuel and would in all likelihood raise profits by raising the cost of energy over all.”
“Are you saying that despite the massive adoption of renewable energy the market for fossil fuel remains the same?”
“But isn’t the whole point or renewable energy to replace fossil fuel?”
“I cannot say what the point of renewable energy is: Perhaps you should ask its protagonists”.
“No further questions m’lud: ”
Defence attorney rises
“Would it be true to say that you carried out research both into the likely effects of anthropogenic climate change, and into the possible adoption of renewable energy, so called, as a mitigating technical strategy”
“It would”
“And this was done some years ago”
“It was”
“So that in general Exxon DID know the potential effects on man made climate change both on the environment and on the marketplace for fossil fuel”
“And yet you failed to act on these findings. Why?”
“Because the findings were that there would be negligible effects in either case¨.
“So the effects of Anthropogenic Global Warming, or Climate Change, as it is known would be negligible?”
“Anthropogenic Global Warming, yes, but non anthropogenic climate change is of course a historical fact and could have a considerable impact. We have for example strategies to cater for climate cooling and warming, but not to cater for Anthropogenic Global Warming”.
“And you further assert that the market for fossil fuel would remain unchanged or nearly so despite massive deployments of renewable energy”
“We do”
“How can that be?”
“Our assessment of the technologies showed that when the requirements for dispatchability were taken into account, and the energy involved in manufacturing and maintenance, the net contribution of renewable technologies to energy production was zero to slightly negative, depending.”
“I am sorry, but that sounds like you are saying that deployment of renewable energy has no effect at all, or indeed possibly means a slight increase in fossil fuel consumption”
“That is correct”.
Addresses the court
“So m’lud, the essence of the defence is not to deny that Exxon knew, nor to deny the validity of climate change, nor yet to even deny the validity of Anthropogenic Global Warming. In fact we assert that Exxon knew perfectly well, years ago, that Anthropogenic climate change would be of negligible impact, and that no amount of renewable energy would result in a reduction in fossil fuel usage, so there was no environmental impact from fossil fuel usage, and no impact on the fossil fuel market. Indeed the only adverse environmental impact was from renewable technologies themselves”.
“It sounds like you are saying that the plaintiffs should be the defendants”
“You might say that: we couldn’t possibly comment, and it would not be in our shareholders interest to pursue a counter suit”.

Caligula Jones
Reply to  Leo Smith
February 21, 2018 11:46 am

Yeah, but you live on the hope of an even adequate judge.
On the other hand, you could have one of the judges from the Steyn/Mann “Hundred Year War” suit.

Bryan A
Reply to  Leo Smith
February 21, 2018 12:16 pm

+97% and raise you 1.21 gigawatts

Joel O'Bryan
Reply to  Bryan A
February 21, 2018 3:24 pm

that would be 1.21 jiggawatts.

Greg Cavanagh
Reply to  Bryan A
February 21, 2018 6:09 pm

I think it’s more like 1.21 gigglewatts.

David Chappell
Reply to  Bryan A
February 21, 2018 9:24 pm

or lottalarfs

February 21, 2018 11:30 am

Different jurisdictions were able to successfully sue the big tobacco companies. That’s because there were clear victims. The smokers could be painted as innocents because when they started smoking they didn’t realize how addicted they would become.
The trouble for the municipalities is that they use fossil fuels. They are therefore part of the problem. Furthermore, they have a duty to mitigate any possible damages. link The question will be, “What have you done to prevent the supposed damages due to climate change, and why are you still using fossil fuels?”
Once they realized that their own consumption of fossil fuels would lead to CAGW, the municipalities had the duty to take all reasonable (in law, ‘reasonable’ is often quite unreasonable) actions to prevent CAGW from happening. They can’t claim to be innocent victims if they haven’t done that.

Wayne Townsend
February 21, 2018 11:36 am

“If Professor Epstein is right, why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?”
Two answers:
A. They never thought they’d get caught and are such true believers that they think they CAN win.
B. Backing out would negate the virtue signaling they intended and cause a backlash by the true believers. They can always claim the judge was a denier, the Russians interfered, Trump pulled some strings, etc. After all the value of virtue signaling cannot be put into dollars (unless the dollars flow into their pockets) but it can buy you votes.

February 21, 2018 11:40 am

Why are they pressing forward with these lawsuits?
1) There is the “kids'” suit moving forward in Oregon. The NY suit is propaganda snowballing for the “kids” suit. And if the kids suit goes anywhere, gets any traction at all, the people behind the NY suit think they will have good leverage with the NY suit.
2) Their donors expect something in return for their money. They are giving their donors something.
3) They think that their voting block will see the suit as a positive (regardless of outcome).
4) They’re assholes.

February 21, 2018 12:20 pm

They’re going to get QLav’ed.

paul courtney
February 21, 2018 12:21 pm

“Why … cannot win?” Because the lawyers and their clients remember big tobacco, and think this will pay off in the long run, even if they suffer a loss or two on the way to the big payoff. And while my own state pissed away the settlement money from tobacco, the activist/plaintiff lawyers did not piss it away, at least not all of it (an almost unimaginable sum of money went to those lawyers in that settlement). They are rolling some of it into this idea- does not matter that Exxon is right and cities are wrong, Exxon et al. will eventually pay enough to make it a solid investment. Their calculation has nothing to do with the (total lack of) merit to the claim. In the tobacco cases, at least they could produce people harmed by cigarettes, but could not force the tobacconists to pay until state gov’ts got on board. Here, they could not find a single person harmed by CAGW (think on that!), so they had to go straight to the gov’t plaintiffs. I hope these suits have miscalculated.

Alan Watt, Climate Denialist Level 7
Reply to  paul courtney
February 21, 2018 3:36 pm

I concur completely. The master tobacco settlement pays the participating states about $250 billion dollars over 25 years and is funded by a tax on cigarettes sold in those states. A dismal percentage of the overall settlement money has actually been spent on anything reasonably related to tobacco-related illnesses or smoking prevention programs. As far as the states are concerned it is all “found money”. As far as I am concerned there is no moral difference between tobacco companies that knowingly sell a harmful product and government officers who provide them protection in exchange for a cut of the take; they have become accessories after the fact.
Rinse & repeat. Now that states have discovered a source of new revenue that doesn’t have the political risks of increasing taxes, they are prepared to do it again with oil companies. This is extortion under color of law. At least in the tobacco suits there was solid evidence to show the harmful effects of smoking. With climate change, the only evidence of harm comes from computer models, and it’s all conveniently 20 to 50 years in the future.
At present, it looks like Exxon will fight it, and they have plenty of effective ammunition. But if the legal climate changes, I have no doubt they will settle and pass the costs on to consumers, just as the tobacco companies did.
But the delicious prospect of having bond issuers in the plaintiff states charged with federal securities violations is enough to make me stock up on popcorn.

Reply to  Alan Watt, Climate Denialist Level 7
February 22, 2018 4:18 am

Alan, and of course computer models cannot be said to generate ‘evidence’ of any kind, at any time. They basically just reproduce some version of their input data, with future time on the x axis. So no help there, I hope.

February 21, 2018 12:37 pm

Having any lawsuit on global warming or climate change can only go in the direction of the skeptics. The Burden of Proof will be on the litigants filing the suit to prove that GHG’s are causing the majority of the perceived climate change. But the evidence is not yet in whether CO2 and other GHG’s are the overwhelming force above and beyond Natural Variation. And probably won’t be for at least another 30-to 50 years of intense data collection on weather and climate trends.
Possibly some junior courts will try and throw a monkey wrench into works, but the final appeal before a court like SCOUTUS would have to find that the CAGW ‘evidence’ is absolutely overwhelmingly misleading, untruthful and political for the intent of ‘manufacturing’ other objectives. Things like ‘science’ grants, Carbon taxes/Carbon Trading schemes and International treaties governing the use of energy by sovereign states.
While Govt’s may possibly get away with the ability to levy such taxes and waste public dollars on such actions of ‘climate mitigation’, I think when there is a truth to be established about the ‘scientific process’ that leads to such supposed consensus in science, then the house of cards will collapse on CAGW because the process of data collection, manipulation and final presentation in Science will be shown to be corrupt to the core.
And finally, the weather and climate data will show all this to all be patently false, although that may take 10-15 years of further data analysis, and reality not meeting the hype being peddled by the climateers that profit from such nefarious pronouncements of future climatic conditions. The best thing to happen for climate alarmism right now would be to have these lawsuits proceed and both parties enter their evidence into Discovery. I doubt it will even get to trial, knowing what we know now about acedemia malfeasance, but if it did, the odds are against acedemia and Govt because the burden of proof is with them to prove beyond a shadow of doubt that humans are now the driving force behind weather and therefore long term climate trending.

Extreme Hiatus
Reply to  Earthling2
February 21, 2018 2:02 pm

Well said Earthling. This is all good. So good that I wonder if the CAGW Gang will settle before it can get to court.

Joel O’Bryan
Reply to  Extreme Hiatus
February 21, 2018 4:06 pm

As the plaintiff, they can file a Motion to Dismiss. Defendants could then counter-fle a motion requesting legal fees in a summary judgement, by contending they plaintiffs had filed a nuisance lawsuit.
Depending on what are in the particulars of the confidential contingency agreement between those local governments and their hired law firms will decide whether that will happen. The question is who would have to pay Exxon’s legal fees? Would it be the cities/counties or the law firms that are working on contingency? Those details would be in the confidential representation agreements between those parties, but it would affect how they go forward with a Motion for Dismissal.

Reply to  Earthling2
February 22, 2018 3:31 am

‘Having any lawsuit on global warming or climate change can only go in the direction of the skeptics…’
Ever heard of “A Kangaroo Court” ? Nothing against the Ozzies but you never hear of a Kiwi Court. Eh?

Reply to  harveyhomitz
February 23, 2018 8:12 am

As I say, the best thing that could happen for Climate Science would be to put the Scientific Method itself on trial, and see if that stands the rigour of the Courts. At least even if it is a ‘Kangaroo’ Court Judgement, it will stand for all time against what will be more advanced knowledge gathered and known in the years to come. I suspect a lot of people just know this instinctively already. When tje tide turns on the activist alarmism style climateers, it will fall like the Berlin Wall.

Reply to  Earthling2
February 22, 2018 1:28 pm

Good question Harvey…Is it possible that at the highest levels of the Courts in the land, that they could take a Kangaroo Court position on CAGW as currently presented by some adherents of current Climate research?
I doubt that any court, especially one like SCOTUS could find that climate science is at such an advanced stage that it could be unequivocally stated with 95% confidence that everything they say could be reality by 2050 or 2100. A Supreme Court of most countries will not put their seal of approval on such conjecture. Especially when it appears blatantly that the Deck has been stacked by a few influential insiders with reputation, status and money to gain.
The best thing that could happen right now, is to get the Scientific Method before a senior Court of Law, and I guarantee you that it would be impossible for any credible sitting Judge to accept that the Scientific Method has been rigorously upheld in all matters relating to current climate science. We have documented here on this site time and again that the Scientific Method has been abondoned by the Scientific community at large. But we are not taken seriously. Yet. Have a few significant court cases go against the scientific community for lack of credibility and/or deliberate misrepresentation, and this house of climate cards will collapse very quickly. Once the main stream media turns on the credibility of the scientists making the incredulous claims, the jig will be up.

Kaiser Derden
February 21, 2018 2:11 pm

“If Professor Epstein is right, why are county and state bodies continuing to waste public money pursuing lawsuits they know they cannot win?”
At this point its because they realize they need the winnings to pay the bond holder lawsuits that will soon crop up …

Steve Fraser
Reply to  Kaiser Derden
February 21, 2018 2:38 pm

And, not to mention the serious hurt the SEC can put on them for securities fraud for failure to disclose material facts.

Joel O’Bryan
Reply to  Kaiser Derden
February 21, 2018 3:59 pm

Going to Vegas to win money needed to pay the mortgage is never a good idea.

February 21, 2018 3:00 pm

If CO2 from the burning of fossil fuels is a cause of climate change then the ones at fault are not the suppliers of fossil fuels but make use of the fossil fuels and actually cause CO2 to enter the atmosphere. Instead of naming just the oil companies they should name all those who make use of goods and services related to fossil fuel use. That would include anyone that makes use of transportation that uses fossil fuels. Food in markets is harvested and transported by the use of fossil fuels so anyone who buys or eats such foods should be named in the suite. Most surfaces, concrete, asphalt, wood, tile and even dirt roads has made use of fossil fuels so anyone who makes use of such surfaces should be named in the law suits. All manufatured clothing involves the use of fossil fuels so anyone who makes use of such clothing should be named in the law suits. Most buildings in the modern world are made of materials that have involved the use of fossil fuels. Anyone who has made use of such buildings should be named in the law suits. Hydro electric power and most renewable power sourced involve equipment whose manufacture involved the use of fossil fuels. All metals that we use including copper wire have involved the use of fossil fuels in mining them, extracting the metal, manufacturing metal goods, and transporting them to maket. Most wood prodicts have involved the use of fossil fuels in creating them and transporting them to market. Most humans on earth should be named in such law suits.
The primary greenhouse gas in not CO2 but rather H2O. All governments on Earth must be also named in these law suits because they have failed to prevent H2O from entring the atnosphere. This has nothing to do with the fossil fuel companies. In the city where I live, the greenhouse gas in the atmosphere sometimes becomes so concentrated that it condenses out as a liquid. The city knows about this problem but all they do is collect the liquid in a network of pipes under the streets and then dump the liquid just outside of the city limits where it is allowed to evaporate back into the atmosphere. The pool of liquid caused by the city is so enormous that it can be seen from space and the EPA has done nothing to remedy the situation. The EPA should also be named in the law suits.
Based on the paleoclimate record and the work one done with models, one can conclude that the climate change we have been experiencing is caused by the sun and the oceans over which mankind has no control. There is no real evidence that CO2 has any effect on climate and plenty of scientific rational to support the idea that the climate sensivity of CO2 is zero. So the party responsible for climate change is really Mother Nature and hence Mother Nature is the party that should be named in the law suits.. Lots of luck collecting on a judgement against Mother Nature.
Climate change has been going on for eons. Even if we could somehow hault climate change in its tracks, the extreme weather events and sea level rise that we have been experiencing are part of the current climate and would continue. There is no know climate that would prevent all forms of extreme weather. It is impossible to determine what aspects of extreme weather have been caused by climate change and what aspects are caused by normal weather cycles. The climate change that we have been experiencing has been taking place so slowly that it takes networks of very sophisticated sensors decades to even detect it. It is really impossible to attribute any damage caused by extreme weather to climate change.
Then there is the issue of “scientific consensus”. Science is not a democracy so it has no meaning. The laws of science are not some form of legislation. Scientific theories are not validated through a voting process. Scientists have never registered and voted on the AGW conjecture so there is no scientific consusus regarding the validity of the AGW conjecture. The AGW conjecture is based on only partial science and is full of holes. The AGW conjecture depends upon the existance of a radiant greenhouse effect that has not been observed anywhere in the solar system including the Earth. The radiant greenhouse effect is science fiction. Hence the AGW conjecture is science fiction.

Alan Tomalty
Reply to  willhaas
February 21, 2018 4:33 pm
Reply to  Alan Tomalty
February 21, 2018 5:27 pm

Such studies are meaningless as I have already explained. The validity of such a conjecture is not a matter of the popularity of some of its component arguements within a select group of people. Having to site consensus as a reason to support the conjecture is really a reason to support the belief that the validity of the conjecture is very suspect. When I was in school, consensus was never given as a reason to believe in the laws of sceince or the theorems of mathematics.

Reply to  willhaas
February 21, 2018 5:58 pm

Well said Willhaas ,
I agree 100%
All oil company’s should cease delivering fuel to these states and then the states would file an anti collusion suite against all of them .
Defense ‘ These states are suing us your honour for causing harm .We are taking preemptive action so that no more harm will be caused sir “

Joel O’Bryan
February 21, 2018 3:35 pm

I think it is deeper, more complex issue than simple hypocrisy by those cities/counties leaders.
The reason this didn’t occur or matter to those Liberal minds that it conflicted with their bond issuance in those cities and counties before they filed their lawsuits against Exxon and the other is due to classic DoubleThink on their part.
From Wikipedia:

“Doublethink is the act of simultaneously accepting two mutually contradictory beliefs as correct, often in distinct social contexts. Doublethink is related to, but differs from, hypocrisy and neutrality. Also related is cognitive dissonance, in which contradictory beliefs cause conflict in one’s mind. Doublethink is notable due to a lack of cognitive dissonance—thus the person is completely unaware of any conflict or contradiction.”

Reply to  Joel O’Bryan
February 21, 2018 6:32 pm

I doubt the AG’s office had anything to do with issuing the various bonds.
It may be a case of the left hand not knowing what the right hand was up to.

Joel O’Bryan
Reply to  MarkW
February 22, 2018 12:17 am

Here is NYC Mayor De Blasio saying two different things to two different groups.
It is classic DoubleThink. That is, he is hallucinating that there is no conflict.
To Bondholders:
Absolutely no mention of Climate Change impacts to $695 million of GO bonds performance.
Signed by De Blasio.
Then in the Climate Change litigation against XOM (Exxon-Mobil).
“This city is standing up and saying, ‘We’re going to take our own actions to protect our own people,’” the mayor said, wearing a green necktie and sitting in front of large green sign that said “NYC: Leading the Fight Against Climate Change.” He added, “We’re not waiting.” – NYC Mayor De Blasio.
Mayor DeBlaso is no different than any other Progressive-Marxist. They are suffering from DoubleThink.
They are products of a Leftist mindset programming and indoctrination. And they have quite weak minds and little critical thinking skills as a result. DeBlasi is the early product of a US Progressve education.
Rx: Progressives must confronted repeatedly and often with the reality and discomfort that cognitive dissonance brings to them when the disconnect between their bond statements (reality) and the climate scam force on them.
And their discomfort will be epic.
Popcorn time.
Dr. Joel O’Bryan

February 21, 2018 4:25 pm

No one has pointed out the insanity of claiming damages for something that hasn’t happened. A bright lawyer will smash the 97% consensus to smithereens.

Joel O’Bryan
Reply to  Eric Coo
February 21, 2018 6:07 pm

Courts have to do it all the time in the case of lost future wages or lost pensions for family survivors in wrongful death suits. Those “future wages, compensations, and pensions” are always heavily padded to the plus side by the plaintiff’s lawyers. Never mind that there were probably Life Insurance policy and employer death benefit pay-outs to the next of kin. Those don’t count.

Reply to  Joel O’Bryan
February 21, 2018 7:11 pm

No, there is a difference. In your example, the courts know there is damage – there is most definitely a loss of earnings – and are trying to put an amount on that damage. There is no certainty of any global warming, no certainty to the cause of warming if it occurs, and no certainty of any net societal loss in the event of warming. So you have a known loss of wages of an uncertain amount in one case, and no known loss at all in the other.
You need to first prove that an act has created damages, such as committing a wrongful death. Can anyone prove that global warming has or will even occur, much less what the damages will be?

Joel O’Bryan
Reply to  Joel O’Bryan
February 21, 2018 7:33 pm

I agree. There’s no certainty of any damage… unless you’re a True Believer in Climate Scripture. Then the Climate Rapture is a foregone conclusion.

February 21, 2018 6:06 pm

What have these states done to alleviate/minimize gas wasting traffic congestion, synchronized traffic lights, full size metro buses with a driver and maybe two riders, etc.

Joel O’Bryan
February 21, 2018 7:10 pm

Environmental Lawyers gone wild

Police: Pittsburgh Lawyer Sexually Abused Dog Multiple Times
By Julie Grant
February 21, 2018 at 1:15 pm
Police have charged DeVoren, a Pittsburgh environmental lawyer, with 10 felony counts of aggravated animal cruelty, 10 counts of sexual intercourse with an animal, and possession of heroin, cocaine and marijuana.

High Treason
February 21, 2018 7:46 pm

One would hope that the legal action results in a proper investigation re cAGW. Without full evidence, there can be no actual defence and some of the “evidence” will be found to be shonky. If a lot of evidence is knocked back, it will show the court system to be corrupt.
Perhaps there will be an outright refusal to hand over evidence as with Michael Mann, which should see Mann’s case thrown out of court and Mann liable for costs. Better still would be to see those that refuse to hand over the evidence ridiculed, exposed and jailed.

February 21, 2018 8:18 pm

Aside from legal technicalities, as in suing yourself in the foot, how about the legal arguments that the premise of CAGW is superstitious hysteria, and just flat out wrong?

Larry D
February 21, 2018 10:48 pm

Failure to make their dire claims in their bond offering aside, discovery and cross examination of witnesses, who are subject to perjury if caught lying, could also be very brutal for the AGW cause.

February 21, 2018 10:54 pm

Oakland’s lawsuit doesn’t put a value on the damages yet, but says it will be in the range of billions of dollars.
They are also contracted to give 23.5% of damages to their law firm, nice payday for the laywers if (big if) they ever won.

Joel O’Bryan
Reply to  climatebeagle
February 22, 2018 12:26 am

The real interesting part is when Oakland loses (or petitions for dismissal) their lawsuit is who is forced to pay Exxon’s legal bills. And Exxon, as the biggest defendant, will most certainly ask for legal compensation for this nuisance lawsuit.
Is it the City of Oakland or the contingency Law firm hoping for a Lottery-style payday who will be forced to pay Exxon’s legal expenses. I hope it is the City of Oakland. But if it is the plantiff law firm and they go bankrupt as a result that is even better.

February 22, 2018 3:27 am

Classic –
“Statements made to potential investors contradict allegations made by the municipalities when they sued the energy industry, the filing says. For example:
-San Mateo County’s complaint says it is “particularly vulnerable to sea level rise” and that there is a 93% chance the county experiences a “devastating” flood before 2050. However, bond offerings in 2014 and 2016 noted that the county “is unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur”;

David Cage
February 22, 2018 9:01 am

They went ahead because under Obama the companies knew they had two armies of lawyers against them and settled regardless of the merits or otherwise of the case. The states were slow to respond to the change of situation when Trump made it clear no money would be available for climate change research let alone frivolous law suits and at the same time the companies called time on automatically settling.
The states will almost certainly lose unless the legal system is too loaded with eco nuts to even contemplate justice. Once that happens it will be interesting to see if they demand compensation for malicious prosecution if that is possible.

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