Prep the Judges, Lest Ye be Judged

Reposted from Climate Litigation Watch

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More Institutions Enlisted in Climate Litigation March, Hint at Possible Climate “Criminal Litigation”

Judicial Briefings beginning in 2019 Seemingly Prompted by 2018 Federal Court Setbacks

Move to ‘Fact-Block’ What Judges Hear on “Climate” Reminiscent of Social Media’s “Fact-Checkers” Campaign

Energy Policy Advocates’s website reveals a recent Freedom of Information Act request to the Department of Energy that caught CLW’s eye. Specifically, the background included in the request established the public interest in the records for purposes of fee waiver… but also raises a few eyebrows.

It involves the wave of “climate” cases being filed nationwide. The defendants in these cases naturally and routinely remove the matter to the more appropriate federal forum. What EPA lays out is one apparent reaction of the climate litigation industry to the unnerving (to them) prospect of federal judges who conclude that their draw does indeed implicate federal jurisdiction, and keep the case, rather than send it to state courts where the plaintiffs think they stand a much better chance.

What EPA suggests is a scheme created in response to two federal judges doing just that, keeping the case, and ruling against the plaintiffs. The scheme reveals an attempt to co-opt yet another institution to try to help this novel litigation campaign remain in friendlier state courts.

EPA’s federal FOIA request asks for correspondence relating to the participation by Lawrence Livermore National Lab’s Ben Santer — a Union of Concerned Scientists Fellow who CLW readers may recall either from ClimateGate or a much more recent tantrum (see below) — in a unique February 24-25, 2021 event co-hosted by the Federal Judicial Center (FJC), a creature of Congress.

A quick reminder of UCS and its role:

It seems that the February FJC event was just the most recent among a privately financed series of sessions for federal judges, seemingly designed to supplement the “climate” plaintiffs’ legal plan and the product of some impressive establishment teamwork.

The activist, member-organization and lobbying group American Association for the Advancement of Science — AAAS having selected Washington, DC for its headquarters rather gave its game away — writes on its website:

You read that right, it wasn’t a typo:

Notwithstanding protestations by the series’ financier, the Environmental Law Institute (ELI), that it is “providing such knowledge impartially and without ideological tilt”, these sessions ensure the presentation of a carefully limited view on climate science.  Indeed, it involves making the plaintiffs’ case “to judges who will be deciding these cases.” Here is how.

The co-host “The Federal Judicial Center Foundation is authorized to accept gifts to support Center programs” (https://www.fjc.gov/about); discrete programs are often specifically paid for by outside foundations. (See, e.g., https://www.fjc.gov/education/programs-and-resources-judgeshttps://www.fjcfoundation.org.*)

The spate of such major litigation before the courts is surely the reason behind this deployment and escalated use of FJC to reach the judiciary.**

For 2020, the year preceding the event at the core of this request, FJC only cites one private, activist group-funded event, which also was an ELI-financed “seminar on climate science.” https://www.fjcfoundation.org/page/reports. The year before that, 2019, the same activist organization, Environmental Law Institute (ELI), “paid the travel expenses for judges to attend four programs on climate science.” Id.

Out of seven total such 2019 events, four were on “climate science”, which makes five out of eight listed FJC events for those two years. That’s six of nine with the February 2021 event which, given FJC’s otherwise limited calendar of such privately financed events, does suggest an effort underway since 2019 to influence the courts on a matter now flooding the judiciary, “climate” litigation.

That presents an interesting chronology. In the Summer of 2018, the climate plaintiffs learned the hard way that leaving the adversarial process to its own devices might result in individual judges giving both sides the opportunity to introduce the court to the issue. And that did not work out for proponents of the agenda Mr. Santer so closely aligns himself with using his taxpayer-funded position.

Tis lesson came in two courtrooms, one on the East Coast and one on the West. In the latter, in City of Oakland et al. v. BP p.l.c., et al. (17-cv-06011), Federal Judge William Alsup (N.D. CA) kept the plaintiffs’ “climate” nuisance case in federal court and, after holding a day-long tutorial affording both sides to make their case, ruled that there is no federal cause of action, dismissing the plaintiffs’ suit. (See, e.g., Myles Allen, “The Alsup Aftermath,” RealClimate.org, April 25, 2018).

Within months, the Environmental Law Institute organized and financed a spate of “workshops”, working through the FJC to place before federal judges a rather more controlled presentation on the dispute. In charge of this? Paul Hanle, former president of Climate Central, which is a participant in the climate industry’s campaign to assign specific “attribution” for different weather events to, well, climate defendants.

A review of these presentations shows the group is presenting to judges the “plaintiffs’ case”, not the effort reflective of “practitioners and organizations on all sides of the political spectrum” or “providing such knowledge impartially and without ideological tilt” its financier went to such pains to proclaim, when posting an explanation for its efforts.

Although the seminars are funded, prepared, and staffed by activists presenting one side of a key issue before the courts, a quick scan of the agendas and ELI proclamations could lull a judge or others into assuming these are innocuous or even balanced. That is, until one reads the faculty bragging about how biased they are. For example:

“Santer says that during his NAS briefing, he specifically referred to the nuisance cases, which seek to recover damages from oil majors for their climate liability as well as for misleading shareholders over the risks of climate change…Santer acknowledges he is not a neutral observer in the debate and believes fossil fuel companies should be held accountable. He adds that attribution science has advanced enough ‘to pinpoint a company’s contribution . . . and assign liability based on their total contributions.’”

(Dawn Reeves, “DOE Scientist Begins Briefing Federal Judges On Climate Attribution,” Inside EPA, May 10, 2021; ellipses in original) 

Santer later topped this by “ending his affiliation with [Livermore] lab over its invitation for Steven Koonin to give a seminar”. Koonin, a former Provost of CalTech, was undersecretary for science in the Obama Department of Energy (that would be Santer’s Department, which under Obama became ever more of a “climate” agency).

Santer’s activism is such that he cannot tolerate knowing that Steve Koonin was permitted to speak to fellow scientists, with his message of what the Intergovernmental Panel on Climate Change (IPCC) really says and confrontation of apocalyptic climate advocacy in science. It seems reasonable to view Santer as even less likely to participate in what ELI claims it is running, a balanced presentation to federal judges who might hear these cases.

And indeed, he did not. This most recent panel affirms the program’s bent toward presenting for judges the views of outwardly and often aggressively ‘partisan’ advocates (Santer, plaintiff’s expert Wuebbles). The other presenters included “one of the 14 scientists behind an amicus curiae brief supporting the plaintiff in the historic 2007 U.S. Supreme Court decision on carbon dioxide emissions and climate change, Commonwealth of Massachusetts, et al. v. U.S. Environmental Protection Agency”, and an academic affiliated with several openly activist groups. Again, not what ELI advertises.*** 

These seminars appear to represent — when viewed with the charitable grants underwriting at least one leading “climate” tort firm which has academic “experts” on retainer — yet another vehicle for activist donors to support the climate litigation industry.

The party financing these “workshops” to present to federal judges a particular point of view on “climate science” — Environmental Law Institute — has a Board populated almost exclusively by activists in the field, and a leading member of its governance team at the time of these events was one of those same donor-funded professors, UCLA’s Ann Carlson, who at the same time all of these events were arranged for also served on the same tort law firm’s team.******

Former New York Times and current City Journal science writer John Tierney describes Facebook “affiliate[ing] with a nonprofit group called Science Feedback … in what it calls a ‘fight against misinformation.’” There, as here, “[t]he group describes itself as ‘nonpartisan’… [though] The fact-checkers were actually fact-blockers. The Wall Street Journal…  concluded that Science Feedback is engaging in ‘counter-opinion masquerading as fact checking’… Facebook and Science Feedback are using their “fight against misinformation” as a weapon to spread their own version of it.” This sounds familiar in the context of this campaign to educate federal judges who might hear climate cases.

It is no secret that you cannot get good decisions when the decision maker is only hearing one side of the story. The reality presented in the Summer of 2018 that federal judges might keep these cases, and — gasp — may ask to hear more than one side’s position seems to have struck a nerve with the climate litigation industry. After which, we see, yet another institution enlisted in the campaign, this time to have witnesses/potential witnesses present the plaintiffs’ case to federal judges, outside of court, about what the judges ought to think in the event the parties meet again.

  • * See also, “The Board, however, acting primarily through its chair, will inform potential donors about the FJCF and the Federal Judicial Center (FJC) and its work. In this regard, Center staff should inform the Board of projects in which outside donors might have an interest and provide, to the degree practicable, the information listed in § 2.a.2.e, infra…2) The Board regards the following as helpful but non-binding, non-exclusive factors to consider in assessing whether gifts would, or would appear to, compromise of judicial branch or Judicial Center integrity and independence….e) The following factual attributes of potential donors …2. The existence of any pending major litigation before any federal court, including the nature of the claims raised and the status of the action;” https://www.fjc.gov/fjcfoundation/procedures.html (described as “For a more complete description of factors the Board considers in deciding whether to accept a gift, see the guidelines adopted by the Board.” https://www.fjc.gov/fjcfoundation/information.html).
  • ** See, e.g., “In the US and around the world, there is a growing tide of litigation on climate mitigation and adaptation, climate regulation, and climate accountability matters. Judges, generalists who rarely have a background in science, are the gatekeepers of scientific evidence and in many cases the finders of fact. The Climate Judiciary Project provides the information and training needed to meet judges’ need for a basic familiarity with current climate science to keep pace with the climate issues emerging in courtrooms and the law.” https://www.eli.org/judicial-education. See also, “Over the last several years, the number of lawsuits related to effects of climate change has grown from a few major cases about a decade ago to scores of cases ranging from tort-based actions to challenges to administrative decisions within which climate implications are imbedded.” https://www.eli.org/vibrant-environment-blog/educating-judges-climate-litigation-today-and-tomorrow.
  • *** A lazy rationalization by the organizers would be that, well, this *is* “the science” because defendants opted in those two cases to not present other witnesses but instead challenged the plaintiffs’ scientific claims through attorney-argument, pointing to roles played by population and economic growth and uncertainties in models and actual data (all as acknowledged even by the IPCC.) Although this approach — no doubt heavily influenced by anxious public affairs departments — prevailed before both Judges Alsup and John F. Keenan in the Southern District of New York and therefore is unlikely to change, it did not somehow lock in that ok climate science will not be contested, by these or other defendants, or amici, in the dozens of other cases.
  • **** One charitable foundation, Resources Legacy Fund, has made “grants” of nearly three million dollars in just three years (2017-2018) directly to the private tort law firm leading the climate litigation campaign, Sher Edling, LLP, the one that has Profs. Carlson and Columbia’s Michael Burger on its team. Styled each year as “land or marine conservation” ($432,129 (2017) https://climatelitigationwatch.org/wp-content/uploads/2019/11/RLF-2017-990.pdf), “advancing healthy communities ($1,319,625 (2018) https://climatelitigationwatch.org/wp-content/uploads/2020/12/RLF-IRS-Final-990-12.31.18-Public-Copy-4829-6612-8044.pdf, “Land or Marine Conservation, Promotion of Education and/or Healthy Communities ($1,110,000 (2019) https://tinyurl.com/28y8pjpz), the most reasonable explanation for this is that the foundation is underwriting the firm’s aggressive pursuit of climate litigation, for which it also has lucrative contingency fee agreements under which the plaintiffs’ tort law firms receive a sliding scale of tens of millions of dollars on each tranche of hundreds of millions expected in any verdict or settlement. For example, the San Francisco agreement with the law firm Sher Edling LLP sets forth that a settlement or verdict of $100 million just for that city would yield the lawyers $25 million, which goes to $32.5 million for a settlement or verdict of $150 million, $36.25 million out of $200 million, and so on. Boulder, Colorado has agreed to pay 20% of its haul to the lawyers. Minnesota agreed to pay Sher Edling “16.67% of the first $150 million recovered, and 7.5% for any portion greater than $150 million.” https://govoversight.org/wp-content/uploads/2021/01/AGO-LAC.pdf. Add to this donor funding of universities to provide faculty to support the same firm [See, e.g., https://climatelitigationwatch.org/activists-academics-plan-legal-assaults-with-a-bunch-of-state-and-local-prosecutors-nationwide/https://climatelitigationwatch.org/wp-content/uploads/2021/03/Carlson-Discretionary-Fund-Explainer-thread.pdf].
  • ***** See, e.g., William Allison, “Bombshell: Naomi Oreskes On Retainer With Plaintiffs’ Law Firm”, Energy in Depth, May 13, 2021, https://eidclimate.org/bombshell-naomi-oreskes-on-retainer-with-plaintiffs-law-firm/, citing to, inter alia, https://www.cnn.com/2021/05/13/business/exxon-climate-change-harvard/index.html, “The company said Naomi Oreskes, one of the main authors of the study, is on retainer with a law firm that is leading lawsuits against Exxon and others in the industry. Exxon called this a ‘blatant conflict of interest.’ Oreskes was not immediately available for comment.”
  • ****** UCLA Law Professor and Director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law, Ann Carlson, was in late January 2021 “appointed by the Biden administration to serve as the chief counsel for the National Highway Traffic Safety Administration. The agency is in charge of climate standards for cars and trucks, which is why they have recruited me for the position.” https://climatelitigationwatch.org/wp-content/uploads/2021/05/A.Carlson-Leave-Records-21-8782.pdf. Carlson also served during this period as a consultant to Sher Edling, LLP, while also serving on ELI’s Board and governance committee. https://climatelitigationwatch.org/wp-content/uploads/2021/03/Carlson-reporting-forms-Responsive-Documents-20-8525.pdf
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May 26, 2021 6:16 pm

Po’ little naive me! I thought ex parte communications with the courts was unethical, but obviously these people have a variance from usual ethics rules.

Spetzer86
Reply to  Tom Halla
May 26, 2021 6:41 pm

Climate Scientists write their own ethics. It’s a really short little list, too.

Reply to  Spetzer86
May 26, 2021 6:46 pm

It is always “badges? I don’t have to show you no stinking badges!” with True Believers.

Crispin Pemberton-Pigott
Reply to  Spetzer86
May 27, 2021 4:07 am

Yeah. It is:

1. “Thou shalt.”

MarkW
Reply to  Spetzer86
May 27, 2021 8:21 am

Speaking of writing their own ethics, it appears that Peter Glieck has popped his little head up again.

n.n
Reply to  Tom Halla
May 26, 2021 7:45 pm

Ethics is a relativistic religion. A handmade tale.

tygrus
May 26, 2021 6:39 pm

The editorial & referenced material (eg. the letter) need more comments linked to the names and roles people have. I’m not a lawyer so plaintiff & defendant get confusing with lawsuits countersuits from both sides. Sometimes I miss who’s side they are on. Some of the phrases in these documents are like double-speak & needs explaining. It would take a lot more effort to keep adding explanations & popup text when hovering over areas. Sometimes you do have the extra information & then it’s missed elsewhere for someone/something else.
Union of Concerned Scientists (UCS)
RICO?
“Santer says that during his NAS briefing” NAS?

Could someone please create a page summarising the cases, people/organisations (parties) involved decisions & verdicts.

markl
May 26, 2021 7:56 pm

The subterfuge is wide and deep.

Anon
May 26, 2021 8:49 pm

This actually could be good news. Along with the Supreme Court we could create the Science Court, with, say, Michael Mann as the Chief Justice:

Then the court could settle things like the Hubble Constant at 67 (km/s)/Mpc and we could just get on with developing cosmological theory, instead of wasting time existing in uncertainty. And any scientist who disagrees with the court could be disposed of like this:

More than 3,000 mainstream biologists were dismissed or imprisoned, and numerous scientists were executed in the campaign to suppress scientific opponents of Lysenko.

https://en.wikipedia.org/wiki/Lysenkoism

I say that in jest, but I think it could be a real possibility in the near future:

I was reading some twitter replies today about the official fact checker (Politifact) flip flopping over the origin of COVID19. It was just last week that you could lose all of your social media privileges if you even hinted that a laboratory could be the source.

These were the top two replies to the critical tweet:

1] Don’t you respect Politifact for acknowledging the change and editing the item in their database?

2] Because they made a mistake based on what was known at the time and then publicly corrected it it?

That is the world we live in. (sigh)

Last edited 4 months ago by Anon
David Coles-Dobay
May 26, 2021 8:55 pm

these judges should all be removed from any possibility of hearing a case due to prior engagement and predication of evidence with out opposing council or rebuttal.

Chris Hanley
May 26, 2021 9:06 pm

Any judge who has been ‘briefed’ beforehand by one side in a matter before them must recuse themselves.

KentN
May 26, 2021 9:18 pm

Seems to me a defendant could demand a judge to be excluded if they have participated in one of these propaganda events before hearing a case on climate litigation.
They can’t possibly claim to be unbiased after that, willingly being indoctrinated on only one side of an issue. How is that different from a juror watching sensationalist media coverage on an active case?

MarkW
Reply to  KentN
May 27, 2021 8:22 am

Or a juror being told that they will bear responsibility for the riots that will follow a verdict of innocent?

Larry in Texas
Reply to  KentN
May 27, 2021 11:51 am

As a lawyer, I would certainly be happy to demand such recusal if the circumstances were right.

Chris Hanley
May 26, 2021 9:34 pm

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions. Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

John V. Wright
May 26, 2021 10:52 pm

This is one of the most shocking things I have read at WUWT. How is it that judges have willingly gone along to these biased seminars – and actually had their travel expenses paid for…by people who may become litigants in future cases they president over?!
This cannot stand. It needs to be reported on more widely – and someone needs to call out the judges and ask the American Bar to name the judges who went on the seminars and not to allow them to sit on climate litigation cases.
This is corruption, pure and simple.

Rory Forbes
Reply to  John V. Wright
May 26, 2021 11:16 pm

This sort of judge shouldn’t sit on any bench, even adjudicating jay walking. Once a judge becomes biased he should be impeached. A judge must be disinterested in all matters before him.

observa
Reply to  John V. Wright
May 26, 2021 11:27 pm

That’s noble cause corruption to you sir. Your problem is you don’t understand the dire need to change the climate in order to prevent your dooming.

observa
Reply to  observa
May 26, 2021 11:41 pm

PS: I should add you’ll only understand the nobility of it all once you’ve become a ‘noble savage’-
Guardian: We Must Abandon “Speciesism”, Putting Humans First, to Stop Climate Change – Watts Up With That?

pigs_in_space
Reply to  John V. Wright
May 26, 2021 11:30 pm

WAAAAY too late, have you seen the results of the latest SHELL case in Netherlands.
Harrabin and others are crowing it opens the way for an international precedent.

My solution:-
Cut off all oil based products to the litigants.
NO plastics, no diesel or petroleum based fuel for any of their vehicles inc LPG, no tyres on any moving object, no synthetic based clothes for them, no laptops, no central heating based on any form of fossil fuels..

Let’s see how they get on.

StephenP
Reply to  pigs_in_space
May 27, 2021 3:25 am

Yes, in particular cut off the natural gas for heating and cooking.
Also don’t let them get any benefit from gas from Nord Stream 2.

pigs_in_space
May 26, 2021 11:38 pm

already old news.
Dubbed “the People versus Shell“, the case was launched in 2019 by the Netherlands branch of Friends of the Earth, and is backed by six other groups and more than 17,000 Dutch citizens.

A Dutch court on Wednesday ordered Royal Dutch Shell to cut its carbon emissions by net 45% by 2030 compared to 2019 levels in a landmark case brought by climate activism groups, which hailed the decision as a victory for the planet.

The corruption was already out of control, from the “fake news factory”:-
Anal- y sis by you know who….

https://www.bbc.com/news/world-europe-57257982

Petit_Barde
May 27, 2021 12:42 am
observa
May 27, 2021 2:46 am

Who needs democratically elected representatives when appointed public servants can decide what they should be doing on our behalf-
Court rules Ley has climate ‘duty of care’ (msn.com)

May 27, 2021 6:32 am

What judges really need is the primer that Drs. Happer, Koonin, and Lindzen prepared for Judge Allsup: http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2018/20180319_docket-317-cv-06011_na-1.pdf

Then they should read Dr. Koonin’s book, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters , three times over. The very research on which the UN and US assessment reports are based, he points out, predicts that even a whopping 5°C global-average-surface-temperature increase by 2100 would reduce year-2100 gross world product by only about 4%—i.e., would delay total growth by only about two years. (https://nca2018.globalchange.gov/chapter/29/). 

Why should we forego fossil fuel’s benefits and suffer higher prices of nearly everything to make people who will be four or five times richer than we are 4% richer still?

Larry in Texas
Reply to  Joe Born
May 27, 2021 11:55 am

Good to hear that these three titans of science are active in explaining the state of climate science to the Federal judiciary. We need more courageous scientists like them to assist.

H. D. Hoese
May 27, 2021 7:40 am

‘Carbon-Baggers’ show up with suitcases to fill up with money.

skiman
May 27, 2021 8:38 am

In Canada, the recent supreme court decision that allowed the feds to override provincial rites on Co2 taxes occured simply because the majority of the court are of the alarmist faith. The minority wrote clear opinions that showed the court decision was against the constitution but the majority wants to save the planet.

Duane
May 27, 2021 10:47 am

Any judge, Federal or otherwise, who consents to participate in a training seminar on a subject matter that is not strictly legal in nature – i.e., a seminar on what the law says, as opposed to factual matters and what advocates might conceivably claim – and that affects matters that may come before his or her court is guilty of a violation of judicial codes of practice and ethics. Such judges should be outed and have formal complaints filed against them with the appropriate courts, including the Supreme Court which sets forth Federal judicial rules, that would conflict them out from presiding in any proceeding affecting such matters.

Otherwise entire classes of claimants or defendants would be entirely free to lobby judges ex parte which is strictly forbidden in all jurisdictions, Federal and state.

So if this is indeed going on, file complaints with SCOTUS. There are numerous conservative legal foundations like Pacific Legal Foundation who do exactly that … ditto with liberal legal foundations like the ones mentioned in this post.

It’s called “lawfare”.

May 27, 2021 7:23 pm

Some time agoI saw an activist website complaining that jurists were going to seminars led by staff at Antonin Scalia Law School, George Mason University. I wondered what might be on offer different than alarmist materials from Union of Concerned Scientists, National Resources Defense Council, Greenpeace, World Wildlife, and so on. So I went looking to see what was upsetting to the climate faithful, and found some unexpected resources for climate realists, including those serving on the bench.

The Scalia Law School at George Mason University has a long standing Mason Judicial Education Program providing continuing education for jurists. The linked website provides this description:

For over four decades, the LEC’s Judicial Education Program has helped train the nation’s judges and justices in basic economics, accounting, statistics, regulatory analysis, and other related disciplines. The Program offers intellectually rigorous, balanced, and timely education programs to the nation’s judges and justices in the belief that the fundamental principles of a free and just society depend on a knowledgable and well educated judiciary. To date, over 5,000 federal and state judges from all 50 states and the District of Columbia, including three current U.S. Supreme Court Justices, have participated in at least one of the LEC’s judicial education programs. As one JEP participant has put it: the courses have “made us better at our work and improved the administration of justice.”

From time to time there are seminars where jurists discuss cases indicative of newer tendencies in litigation. The school publishes reports of these gatherings as well as studies and articles by legal scholars in its Journal of Law, Economics and Policy. A post linked below provides excerpts from several essays I found in that Journal

https://rclutz.com/2017/12/22/critical-climate-intelligence-for-jurists-and-others/

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