Update On The International Efforts To Save The Planet Through Climate Litigation

Reposted from the MANHATTAN CONTRARIAN

Francis Menton

Having had a long career in the litigation business, I have a well-developed appreciation for the limits on what can be accomplished through lawsuits. Among litigators, the line “Let’s sue the bastards” is always good for a laugh, in rueful recognition of the enormous amounts of effort that can be expended for little, or even negative, results.

But the green environmental movement appears to have both near infinite funding and legions of adherents filled with crazed religious zeal. When somebody in this crowd blurts out “Let’s sue the bastards,” the funding immediately emerges, and ideologue lawyers line up to compete for the gig.

So somehow these guys got the idea of suing national governments on the theory that “fundamental human rights” are threatened by climate change. Would that allegation be enough to get one or a few judges to order the judicial takeover of entire national economies to force the lowering of CO2 emissions? Perhaps that seems to you like the kind of question that is quintessentially outside the competence of the judiciary. If so, then perhaps you don’t understand how far off the ideological cliff much of the judiciary has gone, both here and in Europe. Fortunately for us, there remains considerably more sanity on this issue here in the U.S. than over in Europe.

Herewith an update on litigation on this subject, both here and in Europe.

United States

The most important of these cases in the United States is called Kelsey Cascadia Rose Juliana v. United States, et al. In 2015 Ms. Juliana and twenty some other plaintiffs, mostly individuals who were then adolescents, sued the federal government seeking an injunction to order the end of the use of fossil fuels in the United States. The plaintiffs claimed that the use of fossil fuels violated their rights under the Due Process clause of the Fifth Amendment and the Equal Protection clause of the Fourteenth Amendment. I first covered the case in this post in December 2017, when the then-new Trump administration was seeking to get the Ninth Circuit to issue a mandamus order to get the Oregon District Court to dismiss the case. That attempt did not succeed.

However, two plus years later, in January 2020, the case reached the Ninth Circuit again, this time on a certified interlocutory appeal from the District Court’s denial of a summary judgment motion made by the government. As I reported in this post on January 18, 2020, a three judge panel of the Ninth Circuit, consisting entirely of Obama appointees, ordered the case dismissed, basically on the (obviously correct) grounds of non-justiciability. Here is the key language from the NInth Circuit’s decision:

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.

But, as I noted in the January 2020 post, the U.S. escaped disaster on that one by the skin of our teeth. The Ninth Circuit decision was by a vote of 2-1, and the dissenting judge — Josephine Staton of the Central District of California, sitting by designation — totally bought into the idea that a single judge with this case as a vehicle could order the complete restructuring of the U.S. economy. From the dissenting judge’s opinion:

[C]arbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions created by burning fossil fuels are devastating the planet. . . . [T]he injuries experienced by plaintiffs are the first small wave in an oncoming tsunami—now visible on the horizon of the not-so-distant future—that will destroy the United States as we currently know it. . . .

Anyway, do you think that the Ninth Circuit panel’s January 2020 opinion would end the matter? Hardly. The plaintiffs initially filed a petition with the Ninth Circuit for what is called “rehearing en banc,” which would mean a hearing by all the active judges of the court (29 of them) as opposed to just the three judge panel. But the Ninth Circuit denied that petition in February 2021. At that point the plaintiffs could have sought review by the U.S. Supreme Court, but they read the tea leaves of the current Court and decided that that would not be a good bet.

So instead, they went back to the Oregon District Court — clearly a sympathetic forum — and sought leave to amend their Complaint. Trying to amend your complaint after the court of appeals has held the case non-justiiciable is, shall we say, audacious. But of course the Oregon court held a hearing, on June 25, and as of now has not issued a decision. To get an inkling of how the June 25 argument went, here are the opening lines of the argument from the lead lawyer for the plaintiffs:

Your Honor, how our nation’s children and adults speak, move, love, vote, worship, assemble, learn, and behave in our world is a function of the rights we hold and those we are denied.

Wow. Deep. And now the latest: In this case that has been ordered dismissed by the court of appeals, and as to which all further appellate review is foreclosed by the failure to make a timely petition to the Supreme Court, the word is that the plaintiffs and the government are discussing settlement. The State of Alabama, on behalf of itself and a coalition of other red states, has filed a petition to intervene to contest what they view as an extreme risk of a collusive settlement by our current government. The most recent filing on this motion was on July 20. According to that filing, the plaintiffs have confirmed that, through the settlement negotiations, they seek “a fundamental transformation of this country’s energy system.”

I find it hard to believe that a collusive settlement “transforming the country’s energy system,” after the case had been lost and all chance of appeal foreclosed, could possibly stand. On the other hand, these people will try anything.

Europe

In 2015 an environmental group called Urgenda, together with some 900 Dutch citizens, brought a lawsuit in the national courts of the Netherlands, which case bears great resemblance to the Juliana case in the United States. The original papers in the case appear to be all in the Dutch language, but there is an English language summary appearing at the website ClimateCaseChart.com. The defendant in the case is the government of the Netherlands. According to the summary, the plaintiffs demanded that the government of the Netherlands “do more to prevent global climate change.”

The Urgenda case took quite a different track from the Juliana case in the U.S., in which comparison the U.S. court system comes out looking rather good. According to the summary, a trial-level court in The Hague went right ahead and issued an order compelling the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020. The summary does not mention the grounds for the relief that were asserted in the Complaint, but it does list the bases for the decision cited by the trial court, which included the following:

The court concluded that the state has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy.

The Dutch government promptly took an appeal to The Hague Court of Appeal, which affirmed the decision in 2018. Here, from the Climate Case Chart summary, are the grounds cited by the Court of Appeals:

The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change.

The Dutch government took another appeal to their Supreme Court in 2019, but that court again affirmed on December 20, 2019.

Unfortunately, at that point, the Netherlands was nowhere near approaching the goal of a 25% reduction in GHG emissions from 1990 levels; indeed, according to this chart at Statista.com, CO2 emissions in the Netherlands were actually higher in 2019 than in 1990 (191.9 million metric tons in 1990 and 194 million metric tons in 2019). Dutch CO2 emissions proceeded to fall to 175.8 million metric tons in 2020 — but that was undoubtedly mostly as a result of the pandemic, and still only about an 8% reduction from the 1990 level. Rebound of CO2 emissions in 2021 to approximately 2019 levels would be a good bet.

So what are the Netherlands courts going to do now? Excellent question. They’ve gotten themselves into a box from which there isn’t any very good way out. They seem to have next to no concern with potential loss of legitimacy from usurping the proper role of the legislative branch, or from the impossibility of the court’s enforcing its decree.

But needless to say, the success of the Urgenda plaintiffs has inspired the next and far more ambitious round of this litigation. In December 2020 a group of six young Portuguese citizens, aged 8 to 21, filed a new case, under the name Duarte, before the European Court of Human Rights. This time the defendants are some 33 national governments — the entire 27 member European Union, plus Norway, the United Kingdom, Switzerland, Russia, Turkey, and Ukraine. The demand of the Complaint is that the defendants “take all necessary steps to limit the global temperature increase to 1.5 °C.” The theory is that such steps are necessary to protect the plaintiffs’ “right to life,” which is guaranteed under the European Convention on Human Rights.

A Dutch-based climate skeptic group called CLINTEL (short for Climate Intelligence) posted a report on the Duarte case at the Watts Up With That website on August 27. The Watts Up With That post contains links to further information from CLINTEL about the case, including an extensive background article here. The headline of that article describes the case as “putting democracy under judicial guardianship.”

The post also notes that CLINTEL has been denied leave to intervene in the case, even though some eight environmental and “human rights” groups have been granted permission to intervene. I guess you can see from that where this is going.

As of now, the Duarte case is just getting off the ground. But I would not expect the judges of the ECHR to show any restraint in the sweeping orders they are likely to issue.

Read the full article here.

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Oldseadog
August 30, 2021 2:12 pm

Surely it is the job of elected parliaments or legislators to make the rules and the job of the courts to make sure the populace adheres to the rules. It should be no part of the duty of the legal profession to make rules of any kind. .

Tom Halla
Reply to  Oldseadog
August 30, 2021 2:23 pm

“Should be” does not automatically mean “is”. Judges routinely overreach their powers.

Frank from NoVA
Reply to  Oldseadog
August 30, 2021 2:59 pm

You’d think that, but neither logic nor constitutional limits apply to progressives. One only need consider all the regulations that have been foisted upon (US) folks via the “equal protection” clause of the 14th amendment .

commieBob
Reply to  Oldseadog
August 30, 2021 3:13 pm

And yet the courts can find that federal and state governments have acted in an unconstitutional manner.

Canada has an interesting compromise (Canada is just a misspelling of compromise) called the Notwithstanding Clause. “… it allows Parlament or provincial legislatures to temporarily override certain portions of the Charter (of Rights and Freedoms).”

It means elected governments can over rule the courts. As such it is a remedy to the problem of activist judges.

Last edited 19 days ago by commieBob
BCBill
Reply to  commieBob
August 30, 2021 8:22 pm

Sadly the notwithstanding clause is only a drogue on the intellectually impoverished judiciary in Canada. Notwithstanding cannot stem the self destructive force of the graduates from arts and social sciences programs who have been inculcated to believe they are living a life of misery in stark contradiction to all the evidence surrounding them.

commieBob
Reply to  BCBill
August 31, 2021 5:41 am

There is increasing misery in some groups. It’s not because of the oppressive patriarchy though, it’s caused by the social media, Facebook and Twitter in the forefront.

It was fashionable to call the industrialists of the 19th century robber barons. They have nothing on the psychopaths who dreamed up the strategies that keep folks hooked on their various platforms. Merchants of misery for sure.

Richard Page
Reply to  Oldseadog
August 30, 2021 3:16 pm

Yeah, you’d think, wouldn’t you? Trouble is that everybody seems to think they know best how to run the country instead of the ones they actually elected to do the job. The whole world has gone Dagenham (in case you were wondering it’s several stops beyond Barking!).

MarkW
Reply to  Richard Page
August 31, 2021 5:59 am

Why bother running for office, then negotiating with other interested parties? When it’s so much simpler to get a judge to impose what you want on everyone.

Last edited 19 days ago by MarkW
observa
Reply to  Oldseadog
August 30, 2021 5:27 pm

That’s not how it works with the watermelon blob and the Long March through democratic institutions and laying further groundwork while feathering their own nest. Here’s a typical example and never mind it shows the sham of man made climate change-
Undersea archaeology seeks to uncover secrets submerged off Northern Territory’s coast (msn.com)

‘While the research team looked at geology, climatology, archaeology and genetics, it also relied on linguistics and oral history.
“Some of the song lines and dreaming stories of Indigenous people in the Northern Territory do actually cross the water, almost as if it wasn’t there,” Dr McCarthy said.
He said undersea archaeological knowledge was not only important for historians and Indigenous people, but for developers too.
Dr McCarthy said undersea archaeologists — working with developers — was common in Europe.
“If people want to build new ports, wind farms, lay cables or whatever it is, they need to know that they’re not destroying heritage,” he said.
“If you get in at a very early stage of planning, it’s possible to really enhance our knowledge of the past at the same time as minimizing the disruption to future developments…’

Get the picture?

Alan the Brit
Reply to  Oldseadog
August 31, 2021 12:35 am

Most politicians are lawyers of some kind, so yes they do make laws & rules that everyone else must adhere to, except themselves of course, the law never applies to them!!!

As an aside, I have been engaged as a Chartered Structural Engineer, for several lawyers who have bought a cosy little country pad as a weekend retreat/retirement home, often what we refer to as a Listed Building being of historic interest, perhaps due to its age, design, construction, etc., which comes under strict local authority controls. However, when said lawyers want to make alterations to the property/properties, the seeking of Planning Permission, Building Regulations approval, or Listed Building Control approvals, they seem to suffer from selective amnesia when they realise that official approvals will not or at least unlikely to be granted, & proceed to employ a builder to carry out the work. I & the architects advise the clients of their obligations, we fell short of squealing on them in order to avoid any kind of litigation, but they tended to simply ignore our professional advice, & on some occasions have flatly turned down the work!!! On those occasions when I drew the conclusion that the law applies to ordinary people, but not members of the legal profession who execute it, sometimes!!!

MarkW
Reply to  Oldseadog
August 31, 2021 5:56 am

All that matters to a progressive is that everyone is forced to live as the progressive dictates.
How that control comes about isn’t relevant. Whatever works.

michel
August 30, 2021 2:21 pm

What’s truly wonderful about this is that the Dutch court really seems to have accepted that reducing Dutch emissions will affect the climate!

We are living in the Age of Mass Hysteria.

And the Portugese are demanding that all these countries act to keep temps under +1.5C.

As if there was any way for them to do it!

Maybe next they will sue China? No, didn’t think so…

Richard Page
Reply to  michel
August 30, 2021 4:23 pm

Well if they believe that they can change the planet, let’s try this one on them: tell them that if everyone in the world, at midday, jumps up 3 times quickly, it’ll nudge the planet a tiny bit away from the sun and cool it down by about 1.5C. Wonder if they’re gullible enough to go for it?

John K. Sutherland.
Reply to  michel
August 30, 2021 4:24 pm

Stop selling all fossil fuels to the dutch. Immediately. Another problem solved.

DHR
Reply to  John K. Sutherland.
August 30, 2021 6:15 pm

The Netherlands produces about 70,000 barrels of oil per day. Why did the judge not shut that down?

Reply to  DHR
August 30, 2021 10:14 pm
Sara
August 30, 2021 2:23 pm

I’m trying to understand the “thought process” behind this.

It seems as though these people are suing for the right to control something over which they have no control to begin with, and they want cash in return for their complaints.

Reply to  Sara
August 30, 2021 3:37 pm

The only people who know how to save the planet are lawyers. They deserve our last dollar for their generous unceasing efforts. 🙂

Vuk
August 30, 2021 2:35 pm

For a start save ambulances, police cars and other emergency vehicles from the Tesla 3 autopilot driven cars. Media is reporting another smash-up somewhere in Florida. Apparently when Tesla autopilot sees emergency vehicles flashing lights it can’t resist having a go at it.

commieBob
Reply to  Vuk
August 30, 2021 3:23 pm

Holy Moses! A quick web search produces this. The car I drive has features similar to the Tesla’s. There’s no way under Heaven I would trust my car to operate without my hands on the steering wheel and my eyes fixed on the road ahead.

Reply to  Vuk
August 30, 2021 3:26 pm

Are any lawyers chasing that ambulance that was chased by that Tesla?….how about that self igniting Tesla….any lawyers spying the smoke from it? Lawyers are easy targets.

Last edited 19 days ago by Anti-griff
Redge
Reply to  Vuk
August 30, 2021 11:51 pm

Apparently when Tesla autopilot sees emergency vehicles flashing lights it can’t resist having a go at it.

I used to have a dog like that

markl
August 30, 2021 3:44 pm

So when the CO2 goal isn’t met what’s the recourse? If they sue for damages who do they sue? The end user ….. people? Those in control ….. the government? The distibutors of fossil fuels …. the suppliers? Or the initial providers of the fossil fuels …. the hole diggers? We know the purpose of Lawfare is to wear down the defendants, possible bankrupt them with legal fees, or shame them into submission but oil companies? Combined they have more money than dirt, the hammer of withholding their product, and an overwhelming need for their product. If the intent is to bleed money out of the defendants then it’s the people who end up paying.

John K. Sutherland.
Reply to  markl
August 30, 2021 4:26 pm

FF companies, will flee these countries in droves, if this gets any more stupid.

CD in Wisconsin
August 30, 2021 3:53 pm

As I have said in a previous post, there is one obvious way to bring all of this to a head in both Europe and the U.S. Legislatures on both sides of the Atlantic must outlaw fossil fuels by a certain date in the near future (say by the end of 2022). Warn everyone in advance to put solar panels on their roofs and wind turbines in their back yards in preparation.

If the climate litigants keep pushing this thing in the courts, then just give them their way. While the great masses of people on both sides of the ocean watch their economies collapse and their societies descend into chaos and anarchy as a result, the right to life becomes meaningless as we all start to die from hunger, cold or violence from the fight for ever diminishing resources.

As has been said many times, the climate alarmist narrative is a cult….a doomsday cult. In a manner of speaking, we can all see ourselves as members of it whether we want to be or not as long as our governments do not question the GHG global warming theory. It then becomes just a matter of how and when we all die as cult members rather than from causes unrelated to the cult’s doctrine. Those in the U.S. should recall Jonestown and the Branch Davidians.

Forcing fossil fuels out of the picture with litigation when many if not most in the eco-movement also oppose nuclear is a death sentence for all off us. They are trying to do things backwards. That these environmental litigants and their sympathetic judges are too ignorant to realize it makes for something resembling a bad comic play.

This is the price we all pay when no one in a position of power is willing to stand up to and push back against the bad science of the climate scare.

To bed B
August 30, 2021 4:05 pm

Even boiling frogs aren’t this dumb.

Forcing energy poverty on the population for dubious reasons is a real crime. Those who thought that it was OK to ignore crap science because we should conserve fossil fuels anyway are responsible.

Rory Forbes
Reply to  To bed B
August 30, 2021 5:58 pm

Frogs are considerably smarter than the humans who put up with violations of their rights. They’ll always try to jump out, if possible. You can’t slowly boil a frog. If you put it into boiling water it will die.

Last edited 19 days ago by Rory Forbes
John K. Sutherland.
August 30, 2021 4:21 pm

Hold a national referendum in which all voters are required to vote on the statement (yes or no)… ‘to solve the alleged issue of fossil-fuel-caused climate change, I authorize that all my fossil fuel requirements be terminated forthwith’.
Those who vote ‘yes’ should be taken off electricity from fossil fuels (ff), oil coal, gas, not be allowed to drive IC engines. Stop using all ff plastics etc, including clothing and sterile medical aids.

Problem solved.

To bed B
August 30, 2021 4:27 pm

It will not be long before the courts seriously consider a complaint by a control freak that their quality of life is unfairly hindered by the defendant not doing what they were told to do.

Patrick MJD
August 30, 2021 4:30 pm

Lawyers can fix anything. Here in Australia, we have lawyers “fighting” COVID-19. They are “winning”.

Gunga Din
Reply to  Patrick MJD
August 30, 2021 4:48 pm

Here in the US lawyers recently got a girl $1.3 million from a Virginia school district for not allowing her to use the Boy’s bathroom.
(I don’t know how of that $1.3 the lawyer got and how that poor, confused kid got.)

Last edited 19 days ago by Gunga Din
Rory Forbes
August 30, 2021 6:05 pm

There should be some sort of protection for the citizens who fund the court system against frivolous law suits. Courts should have no jurisdiction over unsolved matters of science. For instance there could be no cause of action against a so called “act of God”.

observa
August 30, 2021 6:15 pm

The fossil fuel industries should simply argue one point in their defense-

We seek a ruling from the Court and against all plaintiffs that until such time as the democratic representatives of the people decide our products are outlawed we should be free to produce trade and promote such products. Amen

Rhs
August 30, 2021 6:51 pm

Shouldn’t damages have to be proven at some point? You know, something like an an island atoll vanishes? Or other event which hasn’t been worse in actual documented history? Or can’t be blamed on poor maintenance?

Gunga Din
Reply to  Rhs
August 31, 2021 3:40 pm

Isn’t there a logical fallacy called “After the fact, therefore because of the fact”?
But, as we’ve seen many times from the CAGW crowd, in the courts it will be, “After the fact, therefore because of the claim”.

Jeff Alberts
August 30, 2021 7:56 pm

Every time I hear the words “Stop climate change” or similar, I think to myself that whoever says such things hasn’t though it through at all.

If, by some miracle, humans were able to stop ALL climate change, that would surely spell the end of life on this planet.

Leo Smith
Reply to  Jeff Alberts
August 30, 2021 8:15 pm

I am sure that shortly there will be a move to declare the laws of thermodynamics unconstitutional

Gunga Din
Reply to  Leo Smith
August 31, 2021 3:46 pm

No.
An Executive Order will declare them to be “extensionally” unsound and void.
(As they try to light a fire with an ice cube.)

August 30, 2021 8:24 pm

They don’t want to save anything, they just want to enrich themselves. Make sure it doesn’t happen, and watch them cry like the babies they are.

Redge
August 30, 2021 11:58 pm

And what about my fundamental human right to life, liberty and security of person?

StephenP
August 31, 2021 12:01 am

How many of the lawyers and funders of these lawsuits actually live the fossil free or net zero lifestyle?
It would be interesting for a competent reporter to do some research on the subject.

Disputin
Reply to  StephenP
August 31, 2021 3:53 am

Ah, there’s the rub. “competent reporter”

Gunga Din
Reply to  StephenP
August 31, 2021 4:03 pm

Simple answer.
None.
Ever read (or watch the animated) “Animal Farm”?
Control is the goal.
Even though our current US administration is more like “Animal House” than “Animal Farm”, his handlers’ goal remains the same.

oebele bruinsma
August 31, 2021 1:57 am

This is what you get, when the separation lines of powers are fading……..

Bruce Cobb
August 31, 2021 4:56 am

The Climate Taliban are fond of using the Goebellian principle of repeating a lie often enough that it becomes the truth. Thus, referring to oil companies, they like to claim that “they lied”, meaning of course about “climate change”. In their fantasy, oil execs “knew” that oil “could be” partly responsible for “climate change”, but said otherwise. Because you see, people in the oil industry were “experts” on “climate change”, not scientists, so people believed them. Riiiiight. The Climate Taliban are fond of weaving a web of lies, piling absurdity upon absurdity, all based upon the Big Lie that our fossil fuels are driving climate, and even weather.

Coeur de Lion
August 31, 2021 6:20 am

Should be possible for an oil company to sue every plaintiff on behalf of the planet having had a private investigator analyse their lifestyle. Got an electric wristwatch? You criminal.

mothcatcher
August 31, 2021 9:00 am

These are extraordinary times, but in the light of lawsuits described in this article, this is a real and serious proposal-

It should be possible to find some 6 -10 teenagers who would be willing to put their name to a suit that claims that governments have no right to curtail fossil fuel emissions which would reduce the present rate of increase of atmospheric carbon dioxide, since (and here the science is really settled) that more CO2 dramatically increases agricultural productivity, which inevitably reduces hunger and the threat to life.

Plaintiffs would claim that curtailment action
“…violated their rights under the Due Process clause of the Fifth Amendment and the Equal Protection clause of the Fourteenth Amendment…”

If it was thought that backing from the fossil fuel industry would taint the suit, I fully expect that crowd funding would be sufficient for the purpose.

old engineer
August 31, 2021 3:58 pm

 “The defendant in the case is the government of the Netherlands.”

and

“The Hague went right ahead and issued an order compelling the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020.

and

Unfortunately, at that point, the Netherlands was nowhere near approaching the goal of a 25% reduction in GHG emissions from 1990 levels;”

So what will the Dutch court do? Hold the government in contempt (or the Dutch equivalent).
What then? Fine the government? Since the court is a government eitity, the government will be fining itself, which makes no sense. Since 2020 is past, it can’t issue orders on how it should be done.

Or will the court give a monetary award to the plaintiffs? That would be the real disaster.

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