Judges Acknowledge how Climate Litigation Proponents Try to Undermine Rule of Law

Washington D.C. – Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, issued the following statement in response to Thursday’s decision by the Texas Court of Appeals, which reluctantly dismissed ExxonMobil’s petition to conduct pre-suit discovery against the lawyers, cities and foundations that have been waging the climate litigation campaign against it and other energy manufacturers.

This ruling is a must read for anyone who cares about climate litigation because it uncovers the systematic campaign that lawyers, activists and cities have engaged in over the past decade to turn climate change into a tort litigation issue, not a matter of national energy policy. This is one of the rare rulings that is not important for the result, but for what the judges said about how these groups are trying to undermine the rule of law.

Specifically, the Texas court called the ‘lawfare’ the California municipalities are engaged in an ‘ugly tool by which to seek the environmental policy changes the California parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do.’ The Court also issued extensive findings of fact that track the climate liability campaign, from the infamous La Jolla conference where this litigation strategy was born to secret meetings with foundations to recruit state attorneys general and California municipalities to their cause.

Another good read is the Manufacturers’ Accountability Project’s Beyond the Courtroom report because it further exposes how this litigation has been driven by politics and profit all along. Its chapters detail how a handful of wealthy foundations have been providing money to law firms and public relations consultants to generate and create a false façade of support for this litigation. In addition to leveraging these lawsuits for their protracted fundraising campaigns, they are trying to use them as improper tools to drive the policy debate on climate public policies.

At the end of the day, Americans understand that selling energy they need and use every day is neither unlawful nor a public nuisance, and therefore not a liability concern for the courts. Climate change is a problem that needs to be addressed, but this litigation is neither a viable legal option nor productive. We hope the Texas Supreme Court will allow this case to proceed so that the Texas courts can fully pull back the curtain on the climate litigation campaign.

-MAP-

The Manufacturers’ Accountability Project (MAP) will set the record straight and highlight the concerted, coordinated campaign being waged by plaintiffs’ lawyers, public officials, deep-pocketed foundations and other activists who have sought to undermine and weaken manufacturers in the United States. This campaign will pull back the curtain to expose these efforts and to hold key actors accountable in order to protect our members and American manufacturing workers. The MAP is a project of the NAM’s Manufacturers’ Center for Legal Action (MCLA), which serves as the leading voice of manufacturers in the nation’s courts. Visit us at mfgaccountabilityproject.org

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46 thoughts on “Judges Acknowledge how Climate Litigation Proponents Try to Undermine Rule of Law

  1. It’s past time to expose AGW for what it really is ….. a wealth redistribution and Globalization tool.

  2. Leftists have always taken the position that rules are for the little people, not for them.

    • There is no ethical integrity on the activist side of this conflict; no concern for the disadvantaged, no respect for the hard work of the successful, no reliance on truth. The only important thing is achieving control, power, pre-eminence.

      • For the most parts, leftists are convinced that they have been robbed of what is rightly theirs.
        In a free market economy, they can’t find anyone who is willing to pay them what they believe they are worth.
        As a result they conclude that the free market economy is broken and must be overthrown so that they can seize what has been stolen from them.
        If a few of the “criminals” who have kept them from what is theirs, get killed along the way, that doesn’t bother them.

  3. Climate change is a problem that needs to be addressed…

    No, it needs to shown that warming due to CO2 is a problem first. CO2 is the basic feedstock of living matter on the Earth. Every carbon atom in every living thing was once CO2 in the atmosphere. More is demonstrably better.

    • In addition it has now been shown that fossil fuel CO2 is a bit player in the rise of atmospheric CO2 so it can have only a small part of the unproven effect CO2 rise might have. The IPCC core hypothesis is falsified (https://edberry.com/blog/climate/climate-physics/preprint3/ ) so the basis for this litigation is destroyed. I can not think of a more important fact to become widely known in this election season.

  4. The last sentence in the judgement:

    In the end, though, our reading of the law simply does not permit us to agree with Exxon’s contention that the Potential Defendants have (the?) purposeful contacts with our state needed to satisfy the minimum-contacts standard that binds us.

    Usually, a judge won’t waste time on things that won’t decide the case if there is one obvious thing that will. As far as I can tell, the judge didn’t need to make any findings of fact. All she had to do was to decide that the defendants (cities and allied scum) were beyond her court’s jurisdiction.

    As far as I can tell, the judge found that the defendants were pretty much guilty of everything Exxon accused them of. She didn’t have to do that and it’s significant that she did.

  5. I don’t understand.
    How is the judiciary a branch of government? I though the courts don’t make the law, they interpret the law which is made or changed by elected representatives in parliaments or equivalents or in local governmental authorities.

    • Oldseadog, I think you may not be an American judging by your words. The US constitution defines 3 branches of the US Government.

      Take a look at the Constitution. Article 1 defines the legislative branch; the Congress with it’s House and Senate. Article 2 defines the executive branch; our President. Article 3 defines the judicial branch.

      The language is there that explains the use of terms and how they are used.

      I think that is where your confusion is coming from.

      • The U.S. Legislative branch, the House and the Senate, pass laws, the Executive Branch, the President, sees that the laws passed by Congress are executed, and the Judicial Branch rules on the constitutionality of laws and other decisions made by the other two branches of government.

        From another Friendly Yankee. 🙂

        • Tom,
          Haven’t you forgotten the 4th branch of Government, the Editorial Board of The New York Times? (Sarc.)

    • In the US, Government consists of 3 branches, as defined in the Constitution – the Legislative, the Executive and the Judiciary. Their powers are also set out, occasionally ambiguously, in the Constitution.

      As I understand it, in Parliamentary systems, there is one “branch” of Government – the Parliament.

      Note that the Constitutions of the states must conform to the US Constitution, in that each state government has a Legislative, Executive and Judiciary branch.

      • Sometimes they’re not enforceable anyway. examples In the back of my mind is a pithy quote by a President telling the Supreme Court something like, “you and whose army”. Sadly, I can’t find it with a reasonable amount of googling. 🙁

        • Andrew Jackson of the decision in Worcester v. Georgia is supposed to have written in a letter “John Marshall has made his decision; now let him enforce it!” His lack of enforcement led directly to the beginning of the Trail of Tears.

        • I think you’re referring to the “Indian removal”
          The Cherokee, Chickasaw, Choctaw, et al won their case in the supreme court whereupon Andy Jackass said, “How many troops does John Marshall have?” and did it anyway.

          K. H. female person of color / red

          • The beginning of the Democratic Party’s war against the minorities. (It continues today-their allies in Academica and the Media twist the truth to get minorities to believe slavery to the government is freedom)

    • … and, to add to the replies already, the judicial branch cannot and should not create laws (separation of powers). It only interprets and applies that law. The legislative branch creates the laws.

      • In theory, yes. As of the Bostock and DACA decisions last week, that is no longer the case.

        • The DACA decision by the SCOTUS did not make any law, nor did it decide the merits of the program but rather they ruled the effort to eliminate it did not follow the correct procedures.
          Chief Justice Roberts:”
          “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,'” Roberts wrote in his opinion. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

          • All the “reasoned explanation” needed is that DACA is unconstitutional – as previously ruled by SCOTUS.

            How about an EO by President Trump that sets in motion the deportation of every person illegally in the country, along with any minor children whether born here or not?

            SCOTUS would certainly declare that EO to be illegal. However, the Administration could then continue (per this decision) to execute that EO, while dragging out the “proper procedures” for the next 4+ years.

            SCOTUS does not have to write law where they can, de-facto, create it by delaying the elimination of something that is currently not legal.

          • WO,
            I am not defending the decision, just bringing up the point that unlike the Bostock decision where they actually did make law, the DACA decision was more about procedure.
            While I agree with you it was a bad decision, lumping the two together weakens the argument against the Bostock decision.

          • DACA wasn’t previously ruled unconstitutional by Supreme Court. A one line decision , because court was split 4 all, just affirmed lower Court decision for DARPA ..deferred action for Parents…, A different EO for Child arrivals
            No precedent is created by a non decision.

        • And President Obama’s executive action to create DACA and rewrite immigration law without approval of Congress, created law out of thin air. Even Obama, himself, stated earlier that he was not a king and could not do DACA on his own. Then he changed his mind. And the idiot court is now requiring President Trump to go though all the legal hoops to end Obama’s illegal executive action that Obama failed to go though to create DACA in the first place. By the court’s own logic, DACA is illegal for that reason alone and should have been declared null and void. But politics is just as important to the Justices as it is to elected politicians. So a logical application of the law is no longer required.

      • “… and, to add to the replies already, the judicial branch cannot and should not create laws (separation of powers). It only interprets and applies that law. The legislative branch creates the laws.”

        Unfortunately, the United States is a Common Law country. In such countries, judge’s rulings set precedent. A judge may rule on a dispute in a civil case where no statute exists, or in a criminal case in which the statute is unclear. His decision becomes de facto law by the doctrine of stare decisis, Latin for “to stand by things decided.” Subsequent cases involving similar disputes or statutory violations will be decided (provided the attorneys are on the ball) on the basis of stare decisis.

        In British Common Law, judicial precedent is rarely overturned. That is somewhat less the case in the United States, except for precedent set by the Supreme Court. SCOTUS decisions are very rarely overturned, no matter how irrational and unjust they may be.

        Those decisions then have the force of law. Andrew McCarthy recently lamented, in National Review, that SCOTUS has become a “super-legislature,” not a judicial body. I agree with the lament only of the “super” part, in that there is no higher authority to undo its decisions. Congress may pass legislation to negate a SCOTUS decision in the future, but rarely does. (A future Supreme Court decision may undo a present one, but that is also rare.)

        While I may also “lament” the “legislature” part of McCarthy’s lament, it is only in a philosophical, not a practical sense. The United States is a Common Law country by tradition. All of its executives, legislators, judges, and lawyers have that ingrained in their DNA. In a Common Law country, judges *are* legislators. So, in fact, are trial lawyers.

        Almost 30 years ago, I had an engineering colleague and his wife over to my house for dinner. She, as it turns out, was an attorney. She became quite intoxicated, and went on a lengthy tirade against Gloria Allred (attorney to the stars in California, where we also lived). My guest trashed Ms. Allred mainly on the grounds that she had not only not won very many cases, but because of that she had failed to “create law.” At my expression of ignorance of what that meant, she went into a lengthy (and, as it transpires, very accurate) explanation of “case law.”

        Case law is established by the decision rendered in a civil dispute trial where no statute exists, or where existing statutes are either unclear or do not exactly apply. The winning attorney’s argument becomes de facto law. Trial lawyers in America regard themselves as legislators.

        That wasn’t the intent of the Constitution. But I see no way it can ever be undone.

  6. “Climate change is a problem that needs to be addressed, but this litigation is neither a viable legal option nor productive. ” — MAP

    When, oh when, oh WHEN will the targets of this bogus climate extortion get it through their heads that they only give credence to their tormentors when they concede the fundamental premise of the litigation? Bowing down and genuflecting to the trumped-up “crisis” accomplishes nothing beneficial. If their point is to quibble over how to manage “solutions,” they might as well issue a statement saying they know there’s a big problem and they’re causing it, but they’re just too cheap to do anything about it. Not much sympathy to be had that way…

    • Monckton made that point as well last week. The problem is the oil companies lawyers (in-house and external) have been brainwashed at Harvard and Yale. They are not believers in their clients’ cases.

    • It was two weeks ago. June 8.

      The next day the businessman – a quarry-owner – rang me back. His lawyers, he said, had refused to lodge the case on the ground that The Science Was Settled and that, therefore, there was no prospect of success. One suspects that this ignorant, defeatist attitude is widely shared among oil corporations’ lawyers, as well as among the Tillersons and suchlike faintheart executives who have carelessly and expensively sold the pass on the science of global-warming panic.

      And the rest is history. The moment the Government received the scientific testimony, it folded and agreed to pay half a million dollars’ costs to the truck-driver, and to circulate the movie only if it was accompanied by 77 pages of corrective guidance.

      https://wattsupwiththat.com/2020/06/08/climate-litigation-big-oil-must-fight-on-the-science-or-die/

  7. “Specifically, the Texas court called the ‘lawfare’ the California municipalities are engaged in an ‘ugly tool by which to seek the environmental policy changes the California parties desire”

    Yes, they did. They preceded the remark by saying
    “We confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being, particularly as we were penning this opinion weeks into 2020’s COVID-19 pandemic-driven shutdown of not only Texas but America as a whole.

    Lawfare is an ugly tool…”

    This is supposedly a judicial finding based on the law.

    • It is.
      The court correctly diagnosed the actions of the CA litigants. He was quite regretful in the fact that by following the law (as opposed to the warmunists) he couldn’t do anything to help.

  8. The left corrupts everything they touch. No words that issue from their mouths or keyboards speak truth.

    They have finally declared open war on the US. Casualties are accumulating.

    Unless they are stopped, Democrat States will soon be mailing millions of legal ballots to locations where no legal recipients exist…to people who have moved, died, or failed to vote in a decade. How many of those ballots will be illegally cast? The House and Senate could easily be stolen via voter fraud.

    Foreign and domestic entities could and probably will send out tons of counterfeit ballots.

    Democrats are OK with this carelessness with ballots because they plan to cheat, lie, and steal.

    Can the other States force an end to this wholesale voter fraud?

  9. In reply to:

    “Specifically, the Texas court called the ‘lawfare’ the California municipalities are engaged in an ‘ugly tool by which to seek the environmental policy changes the California parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do.’

    I better way to look at the US legal system is to ask how would China solve their ‘legal like problems’? The US is competing against China… And the US is handicapped as the Democratic party has become an angry mob that is attacking everything, as well as their opposition.

    Two branches of government do what ……? California municipalities might as well demand that the ‘oil’ companies stop time.

    The US/world economy is in deep trouble and these guys are trying to kill or scare away companies that are the base of every country’s economy (energy).

    Cutting down trees to install wind farms, cutting down trees to burn, and cut down trees to grow food to convert to biofuel has obviously damaged the ‘environment’. The farce that green energy is helping/good for the environment is over.

  10. The boondoggle of AGW has been exposed for what it is and always was, about “redistribution of wealth”. The parties behind it have said so on many occasions. The sad part is nothing substantive has been done to fight these lunatics who will seemingly do anything to suit their aims including inciting civil unrest and rioting, assaults on political opponents (and I mean assaults not nasty words!).
    As Tucker Carlson said very well the people in charge of protecting the public have done NOTHING to protect the working men and women, but have instead back pedalled to appease the ongoing attacks on our freedoms. We have seen what capitulating to the Green monster does- it wants more, more more until it has everything.
    Honestly it’s sad and depressing that even after all the warnings and predictions of past leaders and great minds such as George Orwell, here we are facing exactly what we were warned of.
    I fear very much that decent people will wait too long for the authorities who should be protecting us and by that time it will be time to take up arms and literally fight for freedom from tyranny.

  11. Oddly none of these cities have yet demand that oil companies stop offering their products in these cities.
    Which you think they certainly would if they cause as much ‘harm’ they claim they do!

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