IN THIS ISSUE:
- Climate Lawfare Is Flawed, Legal Panel Finds
- Nitrogen Can Benefit Plants and Carbon Dioxide Uptake
- New Zealand Takes on Climate Lawfare
Climate Lawfare Is Flawed, Legal Panel Finds
Legal scholars are becoming increasingly skeptical of the legal merits of climate lawfare: lawsuits filed by cities, states, and individuals to change climate policy through the back door of the courts rather than the legitimate democratic method. These suits use the courts to punish fossil fuel companies for supposedly causing climate harms that legislatures have decided not to regulate.
We at Heartland have fought climate lawfare from the start, filing an amicus brief in a case brought by San Francisco and Oakland in federal court, arguing that neither the science nor the law was on the plaintiffs’ side. If climate policy is a matter for any branch of government to address, it belongs to the U.S. Congress, we argued. Just a few months later, when the lawsuit was dismissed by the court as being illegitimate, I stated in a press release,
Judge Alsup’s decision was the right one. These climate lawsuits are brought by cities with dirty hands—if you think humans are causing climate change, since their police, fire, emergency, and sanitation vehicles all burn fossil fuels. In addition, it attempts to dictate interstate commerce—forcing the nation as a whole to follow California’s energy path—a power delegated specifically to the U.S. Congress in the Constitution. Alsup saw through the cities’ climate fiction.
Oakland and San Francisco were wrong on the science and on the policy. One can only hope the judges in lawsuits against the industry by other cities, states, and interest groups follow Alsup’s lead.
Subsequently, although some similar lawsuits filed in different jurisdictions have been dismissed, many more have been filed, compromising energy security, increasing energy costs, and clogging court dockets.
Recently, George Mason University’s Law & Economics Center held an online symposium titled “Climate Change, Torts, State Law, and Congress: A Discussion on the April 1, 2021 Second Circuit Decision in City of New York v. Chevron Corp.” Though the panel discussion centered on a single case, the discussions had broader application to climate lawfare in general. The panelists detailed numerous flaws in the lawsuits filed against the oil industry by various cities and groups. The general consensus of the panelists, as outlined in an Energy in Depth article covering the discussion, was, first, “climate change requires a political, not judicial, solution”; second, “global climate change [is] beyond the scope of state courts”; and third, circling back to the first point, “climate change does not belong in the judiciary.”
Panelist Mark W. DeLaquil, a partner at the law firm BakerHostetler, said the Second Circuit court’s ruling follows the reasoning of other federal courts that previously dismissed similar lawsuits.
“In my view, the Second Circuit’s decision affirming the dismissal of New York climate change public nuisance lawsuit fits comfortably into the treatment of these types of lawsuits by federal courts over the last decade,” DeLaquil said. “I think the common theme among these cases is that the questions that are raised are simply not appropriate for judicial resolution.”
Another major flaw the panelists identified in the effort to regulate energy use on a national level through municipal- and state-driven climate change cases in disparate jurisdictions is the potential harm and economic chaos. Allowing local courts to dictate energy policy would be bad for national energy security and uniformity, economic progress, and geopolitical security.
“We can talk about the fact that we have fifty different states with potentially different rules, yet we have manufacturers manufacturing products on a nationwide level,” explained Catherine Sharkey, a professor at the New York University School of Law.
In addition to climate change being a global issue rather than a local or even national one, those suing oil companies have greatly benefitted from, and still use and benefit from on a daily basis, the products the fossil fuel industry delivers, making pinning the blame for the impacts of climate change on a small group of energy companies incoherent and hypocritical, said Walter Olson, a senior fellow at the Cato Institute.
“The problem [is] with extending to what are general social problems affecting not just everyone in New York but everyone in the world, and which are contributed to by almost everyone in the world,” said Olson. “If everyone is in on it, if everyone is benefitting from the thing, the judges are less likely [to stop it].
“Everyone in all of these plaintiff cities lives in a city that was made possible by the combustion of fossil fuels,” Olson accurately observed. “That’s just the way it is.”
Reinforcing the message state and local climate lawfare is foolish, dangerous, and legally illegitimate, numerous parties have filed to intervene or submitted amicus briefs in support of the plaintiffs in a Boulder, Colorado case, Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County. These include the U.S. Department of Justice (DOJ), 78 members of Congress, 27 state attorneys general, energy-producing Colorado counties, former senior national security officials, and major business, legal, and policy organizations,.
“This case presents a basic question: Can one city wield one state’s law to dictate how the rest of the world must address a global problem with global effects? The Constitution supplies the answer: Absolutely not,” said the DOJ’s filing in the case. “Our federal system would disintegrate if each State could tackle inherently national or international problems by forcing its regulatory prescriptions on the other 49.
“That free-for-all would generate a scrum of competing regulatory approaches and republic-threatening tension,” DOJ wrote.
In another amicus brief, the members of the U.S. House of Representatives, led by Majority Leader Steve Scalise (R-LA), explained that Boulder’s lawsuit is not simply trying to remedy a harm via tort litigation but rather is attempting to regulate ubiquitous global greenhouse gas emissions, bypassing Congress, federal regulators, and the democratic process.
“The claims here necessarily regulate greenhouse-gas emissions because they would assign liability based on the alleged effects of those emissions,” the House members’ brief states. “Respondents thus seek to impose their own damages-backed rules on when and to what extent greenhouse-gas emissions are appropriate, regardless of whether those emissions result from conduct that Congress has permitted.”
In the end, past federal court rulings, established federal supremacy decisions, and the Constitution’s delegation solely to Congress of the authority to regulate interstate commerce and to the federal government the power to conduct foreign affairs indicate that these state and municipal climate lawsuits should have been barred from ever being filed at the courthouse door. A sound, comprehensive ruling on this matter from the U.S. Supreme Court in the Suncor case could end climate lawfare as a means of setting climate policy. This would save consumers billions if not trillions of dollars in higher energy costs, free up court calendars to hear legitimate tort claims, and bolster America’s energy security.
Unless and until the Supreme Court issues a definitive decision establishing proper lines of authority, these wasteful, illegitimate lawsuits will continue to clog court calendars and squander scarce resources for no good purpose, since humans don’t control the climate and there is no scientifically verifiable climate crisis. Let’s hope the Supreme Court and lower courts find the numerous amicus briefs and reasoning of the legal experts at the recent seminar persuasive.
Source: Energy in Depth; George Mason University Law & Economics Center; Energy in Depth
Nitrogen Can Benefit Plants and Carbon Dioxide Uptake
Almost weekly, new forcing factors are discovered which modify or impact the climate either directly or indirectly, factors which are not accounted for in climate models or by the Intergovernmental Panel on Climate Change. Most often the newly discovered influencing input tends to raise or lower temperatures, thus reducing the amount of recent warming that can be attributed to carbon dioxide (CO2) and other greenhouse gases human activities are emitting. Since the measured and modeled temperatures haven’t changed with the new discovery, the new forcing factors’ influences on climate reduce the temperature impact attributable to CO2, if the findings are accurate.
Most recently, research published in the journal Nature Communications from an international team of researchers from universities and research institutes in Denmark (lead author), China, Germany, the Netherlands, and the United States found nitrogen deposition in the soil is changing the uptake of carbon dioxide into the atmosphere, Under most conditions, human nitrogen deposition, largely from fertilizer use, has increased the uptake of carbon dioxide in plants, storing it in plant material, roots, and the soil, although under some conditions the reverse can be the case with too much nitrogen resulting in lower CO2 uptake and storage. This is important because, as the authors write, “soil respiration or SR [is] one of the largest land-atmosphere carbon fluxes.” Climate models fail to account for either tendency.
“Globally, carbon dioxide (CO2) emission from soils (soil respiration or SR; … is one of the largest carbon fluxes between the land and atmosphere, 7–8 times greater than current anthropogenic CO2 emissions,” write the researchers. “Forests cover about one-third of the world’s land area, and their SR rates are higher than those of other ecosystems … .”
High-input farming and fossil fuel use have tripled the amount of nitrogen deposited in the soil above preindustrial levels. Additional nitrogen can improve plant and soil health, allowing roots to grow stronger and store more CO2.
According to Science Direct’s summary, the researchers analyzed 168 nitrogen addition experiments conducted in forests around the world, for a total of 3,689 observations of natural soil respiration, to produce a global map showing nitrogen-limited and nitrogen-saturated forests.
Applying machine learning to the data, the researchers concluded that although some soils in some forests had received excess nitrogen deposition, reducing root size and function and decreasing soil respiration and CO2 uptake and fixing, overall the increase in nitrogen has improved soil respiration globally, resulting in a net respiration increase of approximately 5 percent.
“Most forests remain nitrogen limited enough that additional nitrogen still stimulates biological activity,” Science Direct stated in summarizing the study’s findings.
To conclude, managing nitrogen deposition can improve plant CO2 cycling while improving forest health.
Sources: Science Daily; Nature Communications
New Zealand Takes on Climate Lawfare
In the past year, New Zealand has softened its interim emission reduction targets, cancelling its proposed agricultural emissions pricing system and planned bans of offshore oil and gas production, even allowing coal to continue playing a role in electricity production in an attempt to produce lower prices and a more stable supply.
New Zealand’s most recent step to ensure the availability of oil, gas, and coal, and the continued viability of economic sectors reliant on fossil fuels, is a decision to bar lawsuits filed against major greenhouse gas emitters. Specifically, New Zealand’s government is moving to amend the Climate Change Response Act 2002 to end current lawsuits and block future litigation against greenhouse gas emitters. The immediacy of the called-for change is a lawsuit filed by prominent climate change activist Michael Smith against six companies set to be heard by New Zealand’s High Court in 2027. In his lawsuit, which is novel for New Zealand, Smith alleges the companies’ emissions have contributed to climate change that has caused harm to his land, interests, and cultural rights.
New Zealand’s Justice Minister, Paul Goldsmith, explained the need to ban climate lawsuits in a statement issued by the government:
Ongoing litigation in the High Court, where an applicant has brought civil claims against six major businesses for their greenhouse gas emissions, is creating uncertainty in business confidence and investment that the Government must address.
The Government is acting now to provide legal clarity and certainty and to remove the possible development of a new regime that contradicts the framework Parliament has already enacted to respond to climate change.
Our government is committed to fixing the basics, and certainty of law is essential for businesses to operate, attracting overseas investment, and stimulating economic growth.
Therefore, the Government will amend the Climate Change Response Act 2002 to prevent findings of liability for tort for climate change damage or harm caused by greenhouse gas emissions in both current and future proceedings before the courts.
Our response to climate change is best managed by the Government at a national level and not through piece-meal litigation in the courts … .
It is essential to maintain the coherence of the regulatory system and to deliver consistent obligations for greenhouse gas emitters.
New Zealand’s efforts come despite the fact that in late May the government voted with the majority when the United Nations General Assembly passed a resolution formally backing a landmark advisory opinion issued by U.N. International Court of Justice (ICJ) that countries have an obligation under international law to reduce greenhouse gas emissions allegedly responsible for dangerous climate change.
New Zealand refused to sponsor the bill, claiming it voted in favor as a symbol of solidarity with its Pacific island neighbors who were plaintiffs in the ICJ case. New Zealand’s Ministry of Foreign Affairs & Trade issued a statement clarifying the limits of its vote, stating the resolution does not indicate support for the ICJ’s specific legal interpretations regarding maritime zones and state continuity, nor does its vote “fully reflect New Zealand’s position on the legal issues addressed by the International Court of Justice [or] reflect all of the views expressed by the Court.”
New Zealand’s present position seems to be that it supports joint, legally binding climate action, except where it disagrees with the legally binding actions.
Sources: The New York Sun; Government of New Zealand
