Ebb and Flow Continues in State Climate Lawsuits

Published November 7, 2016

A New York state judge has ordered Exxon and the accounting firm PriceWaterhouseCoopers (PWC) to turn over documents demanded by Attorney General Eric Schneiderman (D-NY) in his ongoing investigation of Exxon’s statements on climate change.

The judge rejected Exxon’s claim Texas law protects accountant-client privilege, saying New York law does not recognize such privilege.

Schneiderman claims he subpoenaed documents from PWC in order to determine whether Exxon made fraudulent claims to the public and investors concerning climate research it carried out or funded and how possible future legislation limiting fossil fuel use could affect its operations and profits. The letter Schneiderman and Vermont AG William Sorrell (D) used to recruit other attorneys general to join their investigation of Exxon and other climate realists, obtained by the Energy and Environment Legal Institute, paints a different picture.

As the letter reveals, Schneiderman and Sorrell were less interested in bringing law breakers to justice or protecting investors than they were in using the courts to circumvent the democratic process and bring about partisan political ends. In particular, the letter states:

The commitments of the United States and other nations at last year’s Paris climate change conference are very significant steps forward, but states must still play a critical role in ensuring that the promises made in Paris become reality. Put simply, while we have accomplished a lot, much more action to stem climate change and expand the availability and usage of renewable energy is needed, and is needed now.

Whether the Paris climate agreement becomes the law of the land in the United States, and whether renewable power should be promoted, are issues outside the purview and authority any state attorney general or even the U.S. Attorney General. Their jobs are to uphold and enforce existing laws, not have the courts write new laws reflecting their policy preferences.

In early October, Exxon asked a federal judge in Fort Worth, Texas to end the investigations into its climate research, alleging the investigations display “improper bias and unconstitutional objectives.” Their efforts have borne some early fruit.

Though the judge has not yet ruled on whether PWC must comply with the New York court’s order or made a final ruling on Exxon’s request to quash the various investigations, the judge has ruled Massachusetts Attorney General Maura Healey (D) is subject to legal “discovery” by Exxon and must turn over documents the company is requesting from her. In addition, because the New York Supreme Court is a trial court and not the state’s highest court, The Hill reports, “An Exxon spokesman said the company ‘respectfully disagrees with the court’s ruling and intends to take an immediate appeal.'”

I hope the federal court in Texas continues to display more common sense and fealty to the U.S. Constitution’s protections of free speech and the separation of powers than the New York judge has shown.

— H. Sterling Burnett

SOURCES: The Hill and The Washington Times


Court expands ESA protections on climate groundsAustralia adapts farming to desert regionCoffee leaf fungus not related to climate changeSchoolgirl’s agricultural invention and climate adaptation


Overturning a 2014 district court ruling, a three-judge panel of the Court of Appeals for the Ninth Circuit on October 24, 2016 ruled the Obama administration’s National Marine Fisheries Service (NMFS) had the right to designate the Pacific bearded seal as threatened under the Endangered Species Act (ESA) based on the threat climate change could alter its habitat in ways harmful to its survival.

In 2014, a federal district court overturned a 2012 NMFS decision to list as threatened a population of the bearded seal in the U.S. waters of the Bering, Beaufort, and Chukchi seas of the Arctic Ocean, based upon the possible loss of sea ice in between 2050 and 2100. The state of Alaska, Alaska native communities, and the oil and gas industry challenged NMFS’s decision, arguing it was based upon unreliable future climate projections. Courthouse News Service notes the district court agreed with the plaintiffs, ruling NMFS “made an ‘arbitrary and capricious decision’ when it listed bearded seals as threatened because loss of habitat to climate change was based on ‘hollow speculation.'”

In overturning the federal district court’s decision, Judge Richard Paez wrote for the appellate panel, “This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?”

Continuing, Paez wrote, “The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process. The ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute.” As a result, the Ninth Circuit determined “… NMFS’s listing is reasonable.”

Courthouse News Service reports Kara Moriarty, CEO of the Alaska Oil and Gas Association, said in response to the ruling, “‘This is not what Congress intended when it enacted [the Endangered Species Act]’ and that their rationale for listing the bearded seal was ‘based on conjecture rather than science.'”

Courthouse News says ESA protections could limit offshore oil and gas exploration and drilling and the hunting of bearded seals by Alaska Natives whose communities traditionally depend on seal meat and fur for subsistence.

SOURCE: ) Courthouse News Service


An experimental greenhouse in the South Australian desert is producing 15,000 tons of tomatoes a year using just sunshine and seawater – no soil, pesticides, fossil fuels, or groundwater is required. The scientists who designed the system hope it points the way for continued agricultural abundance in the face of possible climate changes and increasing demands for fresh water and energy.

According to New Scientist, “sea water is piped 5.5 kilometres from the Spencer Gulf to Sundrop Farm … [where] a solar-powered desalination plant removes the salt, creating enough fresh water to irrigate” the greenhouses’ 180,000 tomato plants. The greenhouse uses various technologies to make crop production possible in an area unsuitable for conventional farming due to extreme heat and lack of water. The greenhouse is lined with seawater-soaked cardboard, cooling the plants in the summer, while solar heating keeps plants warm in the winter. Seawater sterilizes the air, eliminating the need for pesticides, and rather than soil, plants are grown in coconut husks.

New Scientist reports, “[t]he $200 million infrastructure makes the seawater greenhouse more expensive to set up than traditional greenhouses, but the cost will pay off long-term, says [Sundrop Farm CEO Philipp] Saumweber. Conventional greenhouses are more expensive to run on an annual basis because of the cost of fossil fuels.”

Tomatoes from Sundrop Farm are being sold in Australian grocery stores.

SOURCE: New Scientist


An October 24 study in the journal Philosophical Transactions of the Royal Society B finds claims linking the spread and prevalence of coffee leaf rust (CLR) to climate change are not supported by the evidence. CLR is a fungus that kills coffee plants and is considered the most economically damaging coffee disease in the world.

The researchers used new, sophisticated high-resolution climate reanalysis to test the hypothesis climate change increased the likelihood of the 2008–2011 outbreak of CLR in Colombia. Based on their reanalysis, combined with existing experimental data, they report, “We find no evidence for an overall trend in disease risk in coffee-growing regions of Colombia from 1990 to 2015, therefore, we reject the climate change hypothesis.” Going further, the study says, “… while weather conditions in 2008–2011 may have slightly increased the predicted risk of CLR infection, long-term climate change is unlikely to have increased disease risk.”

SOURCE: Philosophical Transactions of the Royal Society B


Through the process of trial and error, 16-year-old South African schoolgirl Kiara Nirghin combined orange peels and avocado skins with sunlight to create a super absorbent polymer reservoir capable of storing amounts of water hundreds of times its own weight. Nirghin’s invention earned her the regional Google Science Fair’s Community Impact Award for the Middle East and Africa.

In theory, Nirghin’s polymer reservoir should allow farmers to maintain crops at minimal cost during a drought. CNN writes it has the added benefit of being sustainable as it is made from recycled and biodegradable waste products.

Nirghin invented the material in response to South Africa’s extended drought causing water shortages for millions of people. According to CNN, Nirghin’s goal was “to minimize the effect that drought has on the community and the main thing it affects is the crops.” Beyond individual instances of drought, if the invention works on a large scale, it could reduce harms resulting from climate-induced dryer conditions if they occur.

Andrea Cohan, program leader of the Google Science Fair, praised Nirghin, saying, “Kiara found an ideal material that won’t hurt the budget in simple orange peel, and through her research, she created a way to turn it into soil-ready water storage with help from the avocado.” CNN reports Jinwen Zhang, Ph.D., a professor of materials engineering at Washington State University, who is also developing products to address drought, said, “Using waste products for low-cost feedstock for large volume [water storage] is definitely worth further investigation. I think it works.”


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