USDOJ: Climate lawsuits 'violate constitutional principles'

From the “that’s going to leave a mark” department.


The U.S. Department of Justice (DOJ) last Thursday filed an amicus brief in the cases filed by San Francisco and Oakland against energy producers, slamming the lawsuits and asking the court for dismissal. The lawsuits seek financial “damages” from energy companies for the risks posed by climate change.

The Northern District Court of California invited the DOJ to provide its expert opinion on the cities’ claims and advise on relevant information the court should consider for the case, in which the cities allege that combustion of the companies’ products create a public nuisance.

The DOJ responded with several compelling reasons why the cities’ grievances should not be afforded relief by this case: 1) it is logistically impossible to fix a problem of the magnitude the cities describe in court; 2) other parts of the government already regulate greenhouse gas emissions and the U.S. Supreme Court has already ruled that it is not appropriate for the Court to intervene; and 3) the cities may not even have the right to bring this type of claim to federal court.

In American Electric Power Co. (AEP) v. Connecticut, the U.S. Supreme Court dismissed claims against power companies for greenhouse gas emissions because Congress entrusted the Executive Branch with statutory authority to regulate emissions. The cities claim their case is different because they are targeting the producers, not the users.

But the DOJ points out that this case is still about the combustion of fossil fuels, not their extraction or sale – and that it boils down to the same issue the Supreme Court already addressed in AEP:

The Cities seek to evade AEP by suing producers of fossil fuels instead of consumers. But the Cities’ claims depend on the same fundamental theory of liability that the plaintiffs invoked in AEP: that the defendants should be held responsible for greenhouse gas emissions…

“[T]he Cities seek to hold the Defendants liable for exactly the same conduct (greenhouse gas emissions) and exactly the same alleged harm (sea level rise) at issue in AEP and Kivalina. And the Cities’ complaints confirm that this case is not about production of fossil fuels; rather, it is about emissions of greenhouse gases from the combustion of fossil fuels

“Although the Cities cast their allegations in terms of the production of fossil fuels, their claim of injury is legally and factually tenable only to the extent that it is predicated on emissions of greenhouse gases from the combustion of fossil fuels.” (emphasis added)

It’s unclear whether cities even have the authority to bring these types of cases, the DOJ points out. The Supreme Court has allowed only states and the federal government to assert federal common law of nuisance claims; it has never authorized cities to do so. And for good reason, too: the DOJ points out that non-state actors are more likely to be a burden on the courts and on defendants.

Besides the fact that the court already addressed this exact claim just seven years ago, the DOJ also observes that the scope of the lawsuit is prohibitively enormous.

Full story here at EIDClimate

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K. Kilty
May 17, 2018 1:02 pm

Ah. A Justice Department that can once again articulate Constitutional principles. Things are looking up.

May 17, 2018 1:08 pm

So, who’s fault is it that the cities of San Francisco and Oakland emit “greenhouse gas” emissions into the atmosphere daily?

Jim Gorman
Reply to  JohnWho
May 17, 2018 1:13 pm

People burning (not producing) fossil fuels, humans and animals breathing, forest and grass fires! Shall I go on?

Reply to  Jim Gorman
May 17, 2018 1:28 pm

and city vehicles, city buildings with their lights on and AC running, city employees using computers…uh, should I go on?

Reply to  Jim Gorman
May 17, 2018 3:27 pm

Eve – If she hadn’t eaten that darn apple, we wouldn’t be in this pickle. What a rabbit hole.

Reply to  Jim Gorman
May 18, 2018 4:01 pm

Beer and wine fermenting bread rising…

Reply to  JohnWho
May 17, 2018 1:13 pm

Rockefeller…for pioneering oil exploration and refining.

Reply to  justadumbengineer
May 17, 2018 2:08 pm

Rockefeller pioneered monopolies and underhanded business tactics, not either of the above.

Reply to  justadumbengineer
May 17, 2018 4:31 pm

You really do not have a clue of the facts and history.
Rockefeller invented Gasoline for the internal combustion engine revolutionizing transportation for the common man after being a major provider of Kerosene to bring affordable light to the disadvantaged.
The Men Who Built America Full Episodes, Video & More | HISTORY
How five self-made men transformed the U.S into a global superpower.

Gunga Din
Reply to  justadumbengineer
May 17, 2018 5:17 pm

So…The Rockefeller Foundation (plus a few others) should pay all the claimed damages!
That has possibilities for stirring up the liberal’s brew. Bankrupt the Green’$ pipelines.
Neither the Fed’s nor the Companies that bear their names started this. Their trust-protected-family-or-whatever-protected fortunes’ should pay!

Richard of NZ
Reply to  justadumbengineer
May 18, 2018 4:54 am

Cat Cracking
The problem with the History channel is that the only reason anyone watches is to be amused by the almost continuous and egregious errors. The degree they promulgate “commonly accepted” knowledge that can be disproved by 5 minutes of research or merely personal knowledge is astounding. I would not take anything they have to say seriously but with several kilos of salt instead.

Reply to  justadumbengineer
May 18, 2018 6:16 am

..and saving the whales by producing kerosene.

Reply to  justadumbengineer
May 18, 2018 7:10 am

Rockefeller Foundation is a long way from oil:
Also their offshoot, Winrock International,, based in Little Rock, Arkansas. former UNFCCC head Christiana Figueres was a director before her UN job.
They have at various times received in excess of $2 million in grants from the EPA for EPA projects especially on “carbon” matters. They have also received USAID funding in places like India, where they worked in conjunction with Rajendra Pachauri when he was IPCC chief.

Samuel C Cogar
Reply to  justadumbengineer
May 18, 2018 7:22 am

kivy10 – May 18, 2018 at 6:16 am

.and saving the whales by producing kerosene.

“YUP”, Rockefeller’s obsession to develop oil exploration and refining ….. saved the whales.
His development of crude oil …. 1) for safe burning kerosene for home lighting purposes eliminated the demand of “whale oil” for said lighting purposes that was obtained from slaughtered whales….. and 2) for creating plastics for producing items such as backscratchers, collar stiffeners, buggy whips, parasol ribs, crinoline petticoats, and corset stays which were previously made from the baleen taken from slaughtered whales.

Reply to  justadumbengineer
May 18, 2018 9:04 am

Well, Rockefeller DID provoke the feds to enact the Sherman Anti-Trust Act. And to break up the Standard Oil Monopoly.

Reply to  justadumbengineer
May 18, 2018 11:25 am

Rockefeller made money the old fashioned way. He was more efficient than his competitors.

Reply to  justadumbengineer
May 18, 2018 11:27 am

Standard Oil was never a monopoly, those competitors who chose to fight back by improving their own products were doing well and regaining market share.
The Sherman Act is just more proof that buying politicians has a much greater pay back than hiring researchers.

Samuel C Cogar
Reply to  justadumbengineer
May 19, 2018 3:31 am

to enact the Sherman Anti-Trust Act. And to break up the Standard Oil Monopoly.

And that move just increased John D Rockefeller’s fortune …… because he then owned a large number of stock shares in each of the new oil companies.

Mark from the Midwest
Reply to  JohnWho
May 17, 2018 1:46 pm

It’s California, it will play out something like this:
The Governing Council of the City of Oakland, CA hereby authorizes the City Attorney of Oakland, CA to sue the City of Oakland, CA for bringing harm upon itself through the combustion of fossil fuels and the consumption of electricity produced via the combustion of fossil fuels.

James Beaver
Reply to  Mark from the Midwest
May 17, 2018 3:00 pm

Maybe the court will enjoin the city council from further exhalations of the offending gases. That’ll fix it.

John harmsworth
Reply to  Mark from the Midwest
May 18, 2018 7:50 am

Maybe not far off. What’s to stop the citizens from suing the municipality for failing to act and for “enabling” by building and maintaining roads. What were they thinking? Lol!

Reply to  JohnWho
May 17, 2018 2:24 pm

San Francisco and Oakland emit “greenhouse gas” emissions
Why have the cities not banned the burning of fossil fuels if they say they are harmful?
Manny cities for example ban the burning of leaves in your yard or even the burning of wood in your fireplace or the smoking of cigarettes inside buildings.
So why not ban the burning of fossil fuels? Use electric cars and electric heat.

Reply to  ferdberple
May 19, 2018 2:11 pm

However, none of their electrical power can be generated from fossil fuels either.

Reply to  JohnWho
May 18, 2018 4:32 am

The suppliers of their greenhouse ”crack”.
Liberals ”think” innit.

John harmsworth
Reply to  JohnWho
May 18, 2018 7:47 am

Mayors do it! Bears do it! Even climate “science” liars do it! Gotta get rid of that CO 2 5#it!

Reply to  JohnWho
May 18, 2018 8:09 am

Without a doubt such doomed lawsuits are inspired by the lawyers involved.
They get paid big bucks regardless.
The left is so clueless that they yield to the twisted persuasion of said lawyers.
After all, it’s only taxpayers money.

Reply to  JohnWho
May 19, 2018 2:08 pm

Let San Francisco and Oakland ban the use of ALL fossil fuels within their boundaries including water ways. So no ships could dock at either cities nor navigate the bay. You could reverse evolutionary progress for a thousand years and still end up with greater intelligence than what we have now in the bay area.

J Mac
May 17, 2018 1:13 pm

Hmmm… Is it possible that constitutional integrity and, dare I say it, ‘justice’ is being restored to the Department of Justice? This amicus brief would seem to indicate the affirmative!

May 17, 2018 1:16 pm


May 17, 2018 1:16 pm

I hope the Courts deal with the children’s crusade the same way.

Tom in Florida
May 17, 2018 1:18 pm

I think it would be appropriate for the Court, if they take jurisdiction, to simply issue a cease and desist order to the producers from selling their products to the cities bringing the lawsuit and a cease and desist order to the cities from using any of those products currently on hand.

Reply to  Tom in Florida
May 17, 2018 1:30 pm

Clearly they shouldn’t be using a product that they deem shouldn’t be used, should the?

Reply to  JohnWho
May 18, 2018 8:13 am

Oh the schadenfreude in the left actually winning some of these …. and watching the oil companies pulling out of the particular markets involved.
Buy stock in horses & carts.

Reply to  Tom in Florida
May 17, 2018 4:09 pm

I think you’re on to something. Heh.

Reply to  Tom in Florida
May 17, 2018 5:23 pm

My thoughts exactly! Those city’s so directed could then go about doing what they do “best”. Fining people for ignoring that direction. Everybody happy.

John Endicott
Reply to  Tom in Florida
May 18, 2018 5:47 am

I like the way you think Tom in Florida.

Bubba Cow
May 17, 2018 1:26 pm

oh goodie – now Pruit and Sessions are over the target

M Courtney
May 17, 2018 1:29 pm

If States and the Federal Government can appeal to this court why not cities.
They all have a democratic mandate.
And I doubt that States and the Federal Government are immune to stupidity either.

Reply to  M Courtney
May 17, 2018 1:35 pm

Your post indicates a lack of immunity as well.

M Courtney
Reply to  hunter
May 17, 2018 3:41 pm

Probably true.
But that doesn’t answer the question.
Good diagnosis. Bad cure.

Reply to  hunter
May 18, 2018 6:44 am

Thank you for demonstrating the tragic ravages of poor immunity.

Jim Gorman
Reply to  M Courtney
May 18, 2018 11:11 am

Heck, I wonder why the U.S. Congress hasn’t charged the Navy and Army with moving to EV ships and vehicles. The Navy could easily do it. They already have nuclear carriers and submarines. All they would have to do is change the protective and support ships to battery power. Those ships could then be connected to the carrier or submarine to recharge. In doing so, they would provide a protective screen around the most important ship. Voila!

May 17, 2018 1:29 pm

Constitutional principles? Like what? The article doesn’t mention any. I can think of lots of reasons that this should be thrown out but the Constitution isn’t one of them.
Perhaps we can sue San Francisco, Oakland, Etc…. they allow fossil fuels to be legally distributed in their cities.

Reply to  Albert
May 17, 2018 1:39 pm

Yes. That seems to be the remedy that they can exercise in their own jurisdictions for a ‘nuisance’, prohibit the selling and distribution.

Reply to  duker
May 17, 2018 2:11 pm

And use.

TC in the OC
Reply to  duker
May 18, 2018 7:21 am

Maybe they also need to stop taxing it.

Reply to  Albert
May 17, 2018 1:57 pm

Constitutional principles like restraint of trade…
There is more to the US Constitution than the first 10 amendments.

Reply to  Albert
May 17, 2018 2:09 pm

Suing them for bringing this to federal court and wasting federal tax dollars sounds more logical to me.

Reply to  Albert
May 18, 2018 12:39 pm

Perhaps we can sue San Francisco, Oakland, Etc…. they allow fossil fuels to be legally distributed in their cities.
I would love to see someone to this. Unfortunately, I probably don’t have standing to do so, or I would. Someone who lives in one of them, who bought bonds from one of them, or who is affected by this current lawsuit would probably have to be the one to bring suit.

Paul Penrose
Reply to  Albert
May 18, 2018 1:16 pm

As soon as you mention Supreme Court decisions, or Executive Branch responsibilities, you are taking about Constitutional principles since the US Constitution lays out the authority of each branch of government.

May 17, 2018 1:40 pm

The up/down/”back” radiation greenhouse gas energy loop of the radiative greenhouse effect theory is pencil on paper, a spreadsheet cell, a “what if” scenario and NOT a physical reality.
Without this GHG energy loop, radiative greenhouse theory collapses.
Without RGHE theory, man-caused climate change does not exist.
And with a snap of the fingers and “Presto!!” the bazillion dollar global climate change fantasy is suddenly unemployed.
Must be why nobody wants to talk about this possibility, not newsworthy enough.

May 17, 2018 1:51 pm

How is it that a group of people, through their duly elected representatives, could enter into a contract for the delivery of a service, whose process is known to them, then sue for the way the service is produced when it was known in advance and at the signing of the contract?
It’s not like you’re buying a car and didn’t know the parts on it were stolen…

Reply to  fizzissist
May 18, 2018 9:43 am

Same thing as buying a house in the glide path of a major airport then complaining about the noise. People do it all the time, and the city winds up paying for sound insulation upgrades.

Tom Halla
May 17, 2018 2:15 pm

While the action by the DoJ is promising, I wonder if using the federal civil rights laws against the cities and counties would be even more appropriate.

May 17, 2018 2:17 pm

It’s California so there will a delay in getting to the obvious. Now counter sue and use the proceeds for free fuel for a week or two as dividend payment to loyal customers.

May 17, 2018 2:34 pm

The DOJ is definitely correct but too bad the closing of a cash avenue for lawyers only induces them to drive to new insanity.

Reply to  wolfdasilva
May 17, 2018 3:33 pm

I woulkd not be surprised if judge Alsup refuses further action because the plaintiff “has no standing”, based on previous suits of this nature.
Need our lawyers here to comment.
Hooray for our new DOJ folks!!
Gums sends…

Warren Blair
Reply to  Gums
May 17, 2018 5:45 pm

Lawyers; you’re kidding right?
They wouldn’t waste their time here.
Lawyers simply wait until others have done the hard-yards then swoop and take some or all the credit.
The many lawyer I know are waiting to see which side looks like ‘winning’ the ‘science’ before taking sides.
Lawyers typically are:
Counterfactual as their convenience.

paul courtney
Reply to  Gums
May 18, 2018 10:24 am

Warren Blair: Speaking for myself, I’m a lawyer and I waste time here- I read Kristi’s comments!

Reply to  wolfdasilva
May 18, 2018 6:15 am

“driving to new insanity”.
Maybe full employment is the goal.

Gerry Atrich
May 17, 2018 2:36 pm

Not to mention ” widely accepted belief ” doesn’t carry a lot of weight in a courtroom .

Bill Illis
May 17, 2018 3:50 pm

We finally have some real “Climate Justice”.
And when did they want it. Now.

May 17, 2018 4:04 pm

..I don’t see this as being over
Libs have entirely too much time and too much money…there will be a twist and they will come right back at it again

Reply to  Robert Kernodle
May 17, 2018 4:33 pm

The full brief looks well constructed, but the most obviously logical reason for the absurdity of such law suits seems to be a one-sentence statement that I would phrase something like this:
Modern civilization, as we know it, is substantially based on fossil fuels, and so every individual who causes the combustion of fossil fuels is proportionately at fault for any alleged damage of such combustion, thus making every individual in modern civilization the primary focus of fault, consequently making every individual of civilization the proper target of a law suit.
The magnitude of the absurdity of making such a claim reduces such a claim to trash.

Tom Anderson
Reply to  Robert Kernodle
May 17, 2018 4:36 pm

Which is why “lack of standing” to sue is the best answer. It’s a legal term meaning, none of your business.

Reply to  Robert Kernodle
May 18, 2018 6:34 am

Additionally, there’s hope that some investor will challenge the cities for failing to disclose potential damages in their bond issues.
Gums sends…

Reply to  Robert Kernodle
May 18, 2018 10:03 am

As fulfilling as it might be for some of the investors to sue due to lack of disclosure of all risks, even this would play into the stupidity of the whole idea. The legal grounds for these investors would seem to be equally as shaky, since it would depend on the same stupidity for any success.
I say don’t give this idea any fraction of an inch of credibility. Wipe it off the table totally.

Alan Tomalty
May 17, 2018 4:35 pm

Since we are living in the World of OZ, maybe the Wizard of Oz should sue Dorothy for the curtain damage that Toto created when he pulled back the curtain with his teeth. A lawsuit like this is absolute madness.

May 17, 2018 6:26 pm

Of course what the cities are doing is all posturing. At the most they may hope for one of the far left federal judges on the Left coast to set some new precedent. It would then be tied up in the system for months if not years. All the lawyers would be employed and make lots of PR for themselves. The elected officials would make brownie points just “standing up” to the evil corporations win or lose. If they lose then there is some evil conspiracy, the judge was paid off, etc. I am not a lawyer though I have dealt with standing issues. There is lots of legal precedent on the various aspects of “standing.” Unless a judge out west rules the cities have standing, my guess is that is how this case will be thrown out. Remember the fastest way to the Supreme Court is to have two conflicting opinions in two or more jurisdictions. That is why similar cases have been filed in the NE. Cities seldom have a lot of standing when suing anybody except in breach of contract. Right now 20 cities in Florida are suing the state over a law that prevents them from passing stricter gun laws. The issue is not whether they can or can’t. The law passed in the 1980s said if local government cannot infringe upon the rights of law abiding citizens relative to their Second Amendment rights, if they do the local officials can be penalized.

May 17, 2018 7:16 pm

Bay Area cities should worry about the emissions being dropped on their sidewalks.

Larry D
May 17, 2018 10:26 pm

I was hoping for the defenent’s to file discovery, and bring in the AGW crowd as hostile witnesses. Put Global Warming on trial!

Reply to  Larry D
May 18, 2018 1:23 am

Isn’t it TIME for the “sceptics” to LAUNCH THEIR OWN CASE against the
CAGW CROWD for the damage they have caused :
The diversion of all those funds into ALTERNATIVE ENERGY …….literally wasted !
The diversion of so much scientific endeavour into useless and dead-end , futile projects !
The corruption exhibited by the IPCC and the UN !
Surely THERE ARE GROUNDS FOR LEGAL ACTION to correct the mischief and harm
they have caused !????

John harmsworth
Reply to  Trevor
May 18, 2018 8:00 am

A class action lawsuit on behalf of 7 billion people seeking trillions in damages? What lawyer wouldn’t be drooling over that? I’d accept everything owned and ill gotten by the AGW disciples like Gore and Mann.

Reply to  Trevor
May 19, 2018 1:27 pm

There is a chemical in air, known to cause the presence of “active species” in cells that cause oxidation, DNA damage and mutations.
This stuff is nasty. Many people become ill because of it.
Just saying.

Boff Doff
May 18, 2018 12:29 am

California regulates the seller, and the product. Both are subject to much more stringent restrictions than elsewhere in the USA.
The State also levies an 18c/gallon excise levy on all motor fuel, plus sales tax of 7.25%. It adds up to over $8.5bn per annum taken from the consumer.
As an Alien, I often struggle with the litigation happy environment in the US, but isn’t it difficult to claim damages arising from the use of a product that is authorised, regulated and taxed by the entity bringing the suit?

Reply to  Boff Doff
May 18, 2018 12:47 am

Yes. There are lots of attempted and failed liability precedents which confirm this.

paul courtney
Reply to  Boff Doff
May 18, 2018 11:10 am

Boff: In the tobacco suits, individuals sued but failed more than once, it was only when the states (the ones regulating and taxing tobacco) sued, then tobacco caved. A business decision, and likely the best one they could make, but it set up a template for plaintiffs lawyers and gave them a boatload of money to go after other big pockets. I used to take some pride in our american legal system, but no more, lawfare had to be stopped by Courts and they failed.

Coeur de Lion
May 18, 2018 1:43 am

Dammit so it’s not going to come to court?

Reply to  Coeur de Lion
May 18, 2018 7:57 am

Probably not – the motion to dismiss is probably going to be granted for one or more of a number of reasons which are explained at length in the motion to dismiss.
The DOJ filing is quite interesting, but the really devastating filing is the motion to dismiss, and also the Amicus brief filed by the states. The DOJ filing does not add much to these.
But this is the law, and a judge, so you never know….!

John harmsworth
Reply to  Coeur de Lion
May 18, 2018 8:01 am

Lawyers always spoil the fun!

Joel Snider
May 18, 2018 10:04 am

Considering almost all warmists are also Progressives, violating a constitution they want to abolish and rewrite in their own image, this is probably actually a selling point.

May 18, 2018 10:30 am

I’m wondering if a state that’s banned sanctuary cities/counties can sue a sanctuary state or a state that explicitly allows sanctuary cities/counties in federal court. E.g., Texas sues California for encouraging illegal immigration because once across CA’s border those illegals then spread to Texas, costing Texas time and money for law enforcement, medical bills, etc.

michael hart
May 18, 2018 3:47 pm

I hope the legal brains at the DoJ are putting in some extra time to think-through both the claims being made, and the objections being proffered. While I certainly regard the claims against carbon dioxide as worse than baseless, the anti-industrial global warmers are taking a Machiavellian approach, not one based on good science or commonsense.
That is how we ended up with the EPA endangerment finding, which could remain as a millstone around the neck of the US economy for decades to come. The impoverishment of US citizens is not just a corollary of policies formulated by environmental activism, it is design feature. We must ask what might happen if/when it all gets revisited under a future administration with the same intentions and lack of scruples as the last one, but with more legislative power.
This nonsense needs to be put to bed for longer than just the partisan swings between the two main parties.

May 19, 2018 4:14 am

Should The Cities actually win, a proper judge would award them $1. Their alleged damages are in the future, and completely undefined.
Indeed, a judge could dismiss on the basis that no damages have occurred, hence The Cities have no actual claim.

David Cage
May 19, 2018 11:04 pm

When will anyone bring up in court the idea that man made climate change should be brought up in court and found proven beyond reasonable doubt in legal terms before any case can be brought based on it?
As far as I know climate change has never been tried in court and proven that man made pollution is actually guilty of anything.
Even perfect correlation in zero proof of anything. As an exercise in a social science course the student were asked to find the most ridiculous correlation of cause and effect. One student proved that AIDS was the result of driving Toyota land cruisers in Africa as it had a totally perfect correlation of the sale and use with the rise of AIDS in the region.
There is virtually no evidence for climate change based on CO2 that is not dependent on correlations not really proven in terms acceptable to non climate scientists.

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