Federal Judge John F. Keenan of U.S. District Court for the Southern District of New York dismissed New York City’s (NYC) lawsuit against five major oil companies intended to force them help pay city’s alleged costs of dealing with climate change.
Keenan’s ruling marked the second defeat in just over a month for municipal governments seeking to use the judiciary to address problems purportedly caused by climate change. The first loss came in San Francisco in June when Judge William H. Alsup of Federal District Court in San Francisco dismissed a similar lawsuit against the same five companies—BP, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell—in a case brought by Oakland and San Francisco.
In his 23-page decision dismissing NYC’s lawsuit, Keenan wrote climate change must be addressed by the executive branch and Congress, not by the courts.
Although climate change “is a fact of life,” Keenan wrote, “the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”
Keenan ruled New York’s state and federal common law claims were disallowed under the Clean Air Act, saying it would be “illogical” and violate U.S. Supreme Court precedents to allow the claims under state common law “when courts have found that these matters are areas of federal concern that have been delegated to the executive branch as they require a uniform, national solution … [and] the Clean Air Act displaces the City’s claims seeking damages for past and future domestic greenhouse gas emissions brought under federal common law.”
In addition, Keenan determined NYC’s lawsuit was unjustified because the city itself contributed carbon dioxide emissions and benefited from fossil fuel use.
“[I]t is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades,” wrote Keenan.
Despite the law being clear climate policy is solely within the domain of the legislative and executive branches of the federal government, as two federal judges, one a Reagan appointee and one a Clinton appointee, have amply demonstrated in their written decisions, other states and cities seem intent on banging their heads up against this legal brick wall. On July 2, just a week after the federal courts threw out a climate lawsuit brought by Oakland and San Francisco, Rhode Island filed a lawsuit against oil companies in state court to recover the costs of climate change damages. On July 20, just a day after Keenan dismissed New York City’s lawsuit, Baltimore sued oil companies for climate change costs in Maryland state court. In addition, New York City, Oakland, and San Francisco have each indicated they plan to appeal their cases’ dismissals.
These cities and states either have no serious problems over which they actually have responsibility and authority—such as crime, housing, and education—for which the resources devoted to these lawsuits might be better used, or their leaders just don’t care if they waste taxpayers’ money on frivolous lawsuits simply because it is not their personal money being frittered away. Or, alternatively, those pursuing the lawsuits are so caught up in the grip of climate mania, they just can’t let go, the law be damned.
Perhaps, in reality, the lawsuits are simply an attempted shakedown of an industry with deep pockets, with the cities hoping the companies will ultimately settle out of court, agreeing to pay billions of dollars to them, promising not to fight climate legislation in the future, and committing to shift their investments from fossil fuels to politically favored green energy sources. Oil companies have been unwilling to fold so far and, with their continued profitability and, in reality, their very existence at stake (and two legal wins under their belt), it seems unlikely they will cave into the cities’ demands.
It is long past time to end this game of legal whack-a-mole. If Alsup and Keenan required cities to pay the court costs, attorney fees, and other expenses incurred by oil companies in these cases, municipal and state plaintiffs seeking big climate paydays might drop their lawsuits and get back to their legitimate aim of fostering a better life for the people within their legal jurisdictions.
—H. Sterling Burnett
IN THIS ISSUE …
Prominent Columbia University economist Joseph Stiglitz prepared a legal brief for the plaintiffs in a case before the U.S. District Court of Appeals for the Ninth Circuit, in which 21 youths represented by two climate activist groups, Earth Guardians and Future Generations, are suing the federal government for contributing to climate change by not taxing or otherwise restricting fossil fuel use, which they argue violates their constitutional rights.
Use of fossil fuels for energy production “is causing imminent, significant, and irreparable harm to the Youth Plaintiffs and Affected Children more generally,” Stiglitz writes. If the government acts now to dissuade people from using fossil fuels and encourage the adoption of greener energy technologies, we can avoid disaster at a net economic gain because, Stiglitz writes, “the net benefits of a policy change outweigh the net costs of such a policy change.”
The folks behind the climate science blog Science Matters provide a masterful critique of Stiglitz’s brief. They point out Stiglitz uncritically accepts the Intergovernmental on Climate Change’s (IPCC) conclusions human fossil fuel emissions are causing climate change and it is dangerous. Science Matters says Stiglitz ignores the significant uncertainties, acknowledged even by IPCC, concerning the causes and consequences of climate change, and he ignores hard data undermining or refuting all three pillars in his argument: the causal attribution of climate change to human actions; the claim that climate change is causing and will cause catastrophic consequences; and that governments can stop dangerous climate change while benefiting society.
IPCC climate models Stiglitz cites assume temperatures climb steadily in response to rising carbon-dioxide levels, yet temperatures fell from the 1940s through the 1970s while emissions rose. For the past two decades, carbon-dioxide levels have continued to increase, yet global satellites recorded no significant temperature increase for an 18-year period. Science Matters also points out climate models project more than double the amount of temperature rise the earth has actually experienced for the amount of carbon dioxide added to the atmosphere, indicating the earth’s temperature—and the entire complex climate system of which temperature is only part—is much less sensitive to carbon dioxide emissions than Stiglitz asserts.
Science Matters also details how despite climate model projections of a disastrous increase in powerful hurricanes, flood and drought events, heat waves, and sea level rise, the parameters for all of these climate related events are well within the range of historic natural variability.
Having disposed of Stiglitz’s scientific assertions, Science Matters apparently didn’t feel the need to discuss his claim governments could improve economic performance by restricting the use of fossil fuels, but The Heartland Institute and the Nongovernmental International Panel on Climate Change have shown fossil fuels—first coal, followed by oil and natural gas—provided the energy that produced and powered nearly all the revolutionary technologies of the Industrial Revolution, plus plastics, high-tech manufacturing, and mobile computer devices. As a result, between 1850 and 2010 the exploitation of fossil fuels accompanied, and in large part made possible, a 550 percent increase in the world’s population, all while poverty and hunger declined dramatically. During this time, energy consumption increased nearly 50-fold and world per-capita energy consumption increased nearly ninefold. Nearly all the world’s increased energy consumption came from fossil fuels.
Stiglitz, despite his impressive credentials, is wrong on climate science, economics, and policy.
While many climate alarmists have praised China’s government for signing onto the Paris climate agreement—even though its greenhouse gas emissions have since then grown at the fastest rate in the past seven years, in 2017 and 2018—it seems Chinese companies are breaking international law, in particular the 1987 Montreal Protocol banning the production and continued use of chlorofluorocarbons (CFC)—a class of nontoxic, inflammable chemical compounds used as refrigerants and insulation and in aerosol sprays—to protect the ozone layer. A recent report by the Environmental Investigation Agency (EIA) found 18 Chinese companies in 10 provinces are using CFC-11 to manufacture foam insulation used around the world.
EIA called China’s continued use of CFC-11 “an environmental crime on a massive scale,” with Alexander von Bismarck, EIA’s U.S. executive director, saying, “If China doesn’t stop this illegal production, it will imperil our slowly healing ozone layer.”
Von Bismarck also noted, “CFC-11 is also a super global warmer, making this a serious threat for our climate as well.” CFC-11 is between 3,800 and 4,750 times more powerful a greenhouse gas than carbon dioxide on a molecule-by-molecule basis.
“What we’ve uncovered is a systemic problem, not isolated incidents,” said von Bismarck, indicating it is unlikely this could be happening on such a widespread scale without the government’s knowledge.
In a survey conducted by the Gallup polling organization of 1,033 randomly selected adults in the United States, asking, “What do you think is the most important problem facing the country today?” not a single individual listed climate change as their top concern. Only 2 percent of those surveyed even mentioned the environment as a top concern, much less global warming.
Noneconomic problems dominated in Gallup’s survey, with Immigration topping the list of concerns in July: 22 percent of those surveyed said it was the most important problem facing the nation (up from third place, at 14 percent, in June). “Dissatisfaction with Government” came in as the second most serious concern, with 18 percent listing it as the nation’s top problem (falling from first place, with 19 percent, concerned in June).
In a Breitbart article about the poll, Thomas Williams writes,
“The new poll seems to signal a major disconnect between certain progressive leaders and the American people at large. Last month, for instance, the Berkeley City Council issued a resolution declaring a worldwide climate emergency, calling it ‘the greatest crisis in history’ after evoking memories of World War II. While World War II involved the slaughter of six million as well as tens of millions of casualties, yet somehow the Berkeley City Council believes it was a lesser evil than the overarching problem of climate change, saying that the earth is ‘already too hot for safety and justice.'”
Williams also notes leaders of the United Nations, former President Barack Obama (when he was president), and former Secretary of State John Kerry made similar statements in recent years.
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