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
POST WRITTEN BY
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.”
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Those same fossil fuels also help drive the state’s economy, the sixth-largest in the world, Epstein and others say.
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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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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.
“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.
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.
They’re going to get QLav’ed.
“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.
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.
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.
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.
Well said Earthling. This is all good. So good that I wonder if the CAGW Gang will settle before it can get to court.
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.
Earthling2..
‘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?
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.
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.
“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 …
And, not to mention the serious hurt the SEC can put on them for securities fraud for failure to disclose material facts.
Going to Vegas to win money needed to pay the mortgage is never a good idea.
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.
There has been 1 study that asked a poll of scientists about AGW
http://www.pbl.nl/sites/default/files/cms/publicaties/pbl-2015-climate-science-survey-questions-and-responses_01731.pdf
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.
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 “
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:
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.
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:
https://comptroller.nyc.gov/wp-content/uploads/2014/03/SP-Report-NYC-GO-2014I-1-Conv-to-Fixed.pdf
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.
https://www.nytimes.com/2018/01/10/nyregion/new-york-city-fossil-fuel-divestment.html
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
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.
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.
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?
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.
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.
Environmental Lawyers gone wild
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.
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?
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.
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.
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.
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”;
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.