Friday, December 8, 2017

GWPF Newsletter: Climate Change Goes To Court

U.S. Justice Department In Talks With Scientists Over Looming Climate Court Battle

In this newsletter:

1) German Court To Hear Peruvian Farmer's Climate Case Against Energy Company RWE
The Guardian, 30 November 2017
2) Exxon Climate-Change Probe Goes To Massachusetts Top Court
Reuters, 5 December 2017 

3) U.S. Justice Department In Talks With Scientists Over Looming Climate Court Battle
Climatewire, 4 December 2017
4) Manufacturers Push Back Against Environmentalists' Climate Court Strategy
Washington Examiner, 4 December 2017 
5) Trump Races to Pick Judges Who Oversee Climate Court Cases
ClimateWire, 27 November 2017 
6) Rupert Darwall: A Veneer of Certainty Stoking Climate Alarm
Competitive Enterprise Institute, November 2017

Full details:

1) German Court To Hear Peruvian Farmer's Climate Case Against Energy Company RWE
The Guardian, 30 November 2017

Decision to hear Saul Luciano Lliuya’s case against the energy giant is a ‘historic breakthrough with global relevance’, campaigners say

A German court has ruled that it will hear a Peruvian farmer’s case against energy giant RWE over climate change damage in the Andes, a decision labelled by campaigners as a “historic breakthrough”.

Farmer Saul Luciano Lliuya’s case against RWE was “well-founded,” the court in the north-western city of Hamm said on Thursday.

Lliuya argues that RWE, as one of the world’s top emitters of climate-altering carbon dioxide, must share in the cost of protecting his hometown Huaraz from a swollen glacier lake at risk of overflowing from melting snow and ice.

RWE’s power plants emitted carbon dioxide that contributed to global warming, increasing local temperatures in the Andes and putting property at risk from flooding or landslides, Lliuya argues.

“Even people who act according to the law must be held responsible for damage they cause to property,” the judges said.

Now the court must decide whether “the accused’s contribution to the chain of events depicted here is measurable and calculable,” they added.

“This is a major success not just for me, but for the people of Huaraz and everywhere in the world threatened by climate risks,” Lliuya said in a statement circulated by NGO Germanwatch.

He wants RWE to pay €17,000 ($20,000) towards flood defences for his community in Peru’s northern Ancash region.

The 37-year-old also wants the German company to reimburse him for the €6,384 he himself has spent on protective measures.

Lliuya bases his claims on a 2013 climate study which found that RWE was responsible for around 0.5% of global emissions “since the beginning of industrialisation”.

The court said in a statement that it will choose experts to evaluate the claim in cooperation with both plaintiff and defendant, with Lliuya paying about €20,000 in fees up front.

“It will be up to the experts to quantify [RWE’s] role, which could be different” from the amount he claims, the judges said.

After an initial hearing in mid-November, the court in the north-western city of Hamm gave both sides until Thursday to provide further arguments to help them decide whether the case should go ahead.

The decision to hear the case is a “historic breakthrough with global relevance,” Germanwatch, which has backed Lliuya’s claim, said in a statement.

“Major emitters of greenhouse gases can be held responsible for protective measures against climate damage.”

Full story 

2) Exxon Climate-Change Probe Goes To Massachusetts Top Court
Reuters, 5 December 2017 

Exxon Mobil Corp (XOM.N) will urge Massachusetts’ top court on Tuesday to allow it to avoid handing over records to the state’s attorney general amid a probe into whether the oil company misled investors and consumers about its knowledge of climate change.

The Massachusetts Supreme Judicial Court is scheduled to hear arguments over Exxon’s bid to overturn a lower-court ruling that required the company to turn over documents to Attorney General Maura Healey as part of the investigation.

Healey, a Democrat, and New York Democratic Attorney General Eric Schneiderman sought records after news reports in 2015 about how Exxon’s own scientists determined that reducing fossil fuel combustion was needed to mitigate the impact of climate change.

Healey’s office says those documents from the 1970s and 1980s suggested that Exxon failed to disclose what it knew to consumers and investors and engaged in a campaign to sow doubts about the science of climate change.

Exxon contends that the documents, published by InsideClimate News and the Los Angeles Times, were not inconsistent with its public positions.

Full story

3) U.S. Justice Department In Talks With Scientists Over Looming Climate Court Battle
Climatewire, 4 December 2017

Scott Waldman, E&E News reporter

Justice Department lawyers are quietly courting climate scientists for a simmering legal fight that could have massive implications for government global warming policies.

In recent months, Department of Justice officials have met with Ken Caldeira, an atmospheric scientist in the Department of Global Ecology at the Carnegie Institution for Science, as well as Judith Curry, a professor emeritus at the Georgia Institute of Technology's School of Earth and Atmospheric Sciences who has broken with many of her colleagues in the field by questioning the extent of humanity's role in climate change.

The Justice Department officials questioned the scientists about the level of certainty in climate science, possibly in an effort to help formulate a legal argument that would maintain that climate change is not enough of a dire threat to require immediate government action. The case has the potential to be one of the first Trump administration legal showdowns over climate science. For now, the department is casting a wide net, consulting with climate scientists, environmental law experts and economists, according to the researchers.

A children's climate change case, known as Juliana v. United States, was filed in 2015 by 21 young plaintiffs who claimed their constitutional rights had been violated by government inaction on climate change.

Earlier this year, just days before Trump took office, the Obama administration Justice Department argued that there is no widespread belief among scientists that the world's climate becomes dangerous after passing the 350-parts-per-million mark for atmospheric carbon dioxide, a key metric in the case. Scientists have noted that the current level of CO2, which is about 410 ppm, has not been seen in at least 800,000 years.

Where the Trump administration will take the argument, if the case should proceed to trial, remains an open question. Trump and many top Cabinet officials have rejected the mainstream scientific consensus that humans are warming the planet at an unprecedented pace.

Phil Gregory, an attorney representing the plaintiffs, compared the case to the famous Scopes monkey trial of 1925, when a high school teacher fought for the right to teach human evolution in public schools. The difference now, he said, is that this case would be a showdown on climate science in a courtroom.

Ultimately, the case could have even broader implications than an upcoming "red team" climate debate exercise planned by U.S. EPA Administrator Scott Pruitt because it could yield future government action on climate change, according to Gregory. He said his plaintiffs have extensive evidence that glacial melt, coral reef destruction and rising temperatures pose a grave threat to future generations.

"What we're going to have is the youth of America and their climate scientists," he said. "The Trump administration can bring on any scientist it wants, and we can have that debate based on evidence in a courtroom, so it's better than the Scopes trial, because in the Scopes trial, it wasn't limited to scientific evidence; they talked about the Bible and waved that around."

The next step in the case is oral arguments on Dec. 11 before the 9th U.S. Circuit Court of Appeals in San Francisco. The government, through a writ of mandamus, wants a review of a 2016 decision by a lower court not to throw the case out. If the government is not granted that review, the case could eventually head to trial and climate science could become a central part of a legal argument.

Trump has dismissed climate change as a hoax, and chose a number of Cabinet secretaries who question basic climate science. If the case proceeds to trial, however, government lawyers would be forced to argue that climate change does not pose an immediate threat, something mainstream climate science long ago determined is endangering humanity. There has been a significant focus from both critics and supporters of the Trump administration on whether Pruitt will challenge the endangerment finding, the legal undergirding of EPA's climate rules.

Taking on the endangerment finding would be a major legal fight, requiring the creation of a mountain of alternative research to challenge the significant body of peer-reviewed science that shows humans are warming the Earth at an unprecedented pace.

'Put the science on trial'

A few months ago, Justice Department lawyers went out to lunch with Caldeira, he told E&E News.

They asked if he would take the lead on assembling government witnesses for the case. He said the lawyers are career officials, holdovers from the Obama administration. The lawyers told Caldeira they thought the case was weak, but that proving climate change poses an irreversible harm to humanity would benefit the plaintiffs, he said. Their position was that energy policy is something for the legislative branch to grapple with, not the executive branch, he said.

The Justice Department likely reached out to Caldeira because he has been critical of the case, because he does not think the courts are the place to resolve climate policy. He said he would have worked with the Obama Justice Department because he feels a duty as a scientist to ensure that the best available research is used.

But he declined the Justice Department's request for help, he said, because he is concerned that his work would be distorted for political means by the Trump administration.

"Since so much science is publicly funded, scientists have some responsibility to help have good science considered by the judicial process," he said. "Things are terribly clouded because we have such an awful president and such an awful administration, even efforts to try to get good science into the process could result in negative consequences."

Caldeira is also concerned that if reputable scientists don't participate in the case, the Justice Department could use contrarian researchers to weaken established science.

"You could easily imagine the Trump administration arranging things to not having the best available science presented, but having a perverted view of science presented," he said. "So I think there is a conflict if all good scientists refuse to participate because they don't want to collude with the Trump administration, then that leaves only the hacks, and it's likely that the government's case will be buttressed by hack science."

A Justice Department spokesman declined comment. However, it appears the department is still talking to researchers.

Curry said last week that she was still interested in helping the government with the case, but only if it took place in a nonpartisan manner. Curry has broken from many in mainstream climate science by casting doubt on the belief that humans are the primary driver of climate change. She has also published a significant amount of peer-reviewed research in major scientific journals, including on the Arctic and the causes of the climate feedback that have shaped the region.

"I'm prepared to give my best expert advice in a nonpartisan way; they may not like some of it," she said. "You just have to give it your best, deepest, most honest shot of explaining what's what, what we don't know."

The plaintiffs in the case have already submitted an expert review by scientists, economists and other experts in the field that clearly shows the threat climate change poses to future generations, said Gregory, the co-counsel representing the plaintiffs. The government has not submitted a report that would challenge established climate science, and lawyers have essentially argued that producing such a report would be too burdensome, he said.

"Our position all along has been to put the science on trial, and we want for them to bring in recognized scientists and let those individuals submit reports and testify before the courts; that's exactly what we think should happen," he said. "Obviously what's occurring now in our climate should not be decided by politicians, but should be dictated by the best available science."

4) Manufacturers Push Back Against Environmentalists' Climate Court Strategy
Washington Examiner, 4 December 2017 
John Siciliano

Manufacturers are pushing back against a growing array of climate change and other lawsuits brought by environmentalists and state attorneys general, saying that the activists are blaming business for activities that could go back as long as a century.

The effort is the first by the National Association of Manufacturers, the large national trade group representing manufacturers, or any large industry trade group for that matter, said spokesman Michael Short. "No effort like this,” said Short. “We are the first group out there.”

It quietly announced the new legal initiative last month.

“We’ve launched what we’ve called the Manufacturers' Accountability Project and the intention is to push back on the use of lawsuits funded by activists to target manufacturers for a variety of problems, including we’re looking at the climate lawsuits,” said Linda Kelly, the trade group’s senior vice president and general counsel, in an interview with the Washington Examiner.

One of the actions they intend to push back against is an investigation by Democratic state attorneys general, led by New York's Eric Schneiderman, into claims that Exxon Mobil suppressed information about climate change after its own scientists warned it would harm their business.

Other actions go beyond climate change, such as last month’s decision in California state appeals court that used a nuisance ruling to get paint manufacturers to increase their payments to the state’s lead paint abatement program to include homes built before 1951, when the companies said they no longer were advertising lead in their paint.

Experts see the ruling as a potential precedent for a case making its way through the state's court system in which states are trying to hold oil companies accountable for harmful climate pollution causing sea-level rise.

Kelly said the “trend has been to push this notion of various manufacturing activities and products as a public nuisance.” She sees that as increasingly problematic if activists start building a record with lawsuits that the industry sees as shaped by an activist agenda, rather than real evidence of harm.

“We’re trying to raise awareness of the tactics that are behind these lawsuits and some of the groups that are funding them and how different interest groups are teaming up with state officials, because these lawsuits are being brought by states and by cities and counties, and show this isn’t an organic effort of different states and cities to try to recover damages,” Kelly said.

The industry wants to educate lawyers and state attorneys general that the suits are “really something being shopped around by the plaintiff’s bar,” she said.

“It’s really diverting resources for manufacturers; even when they win these cases, it is very costly to defend them,” Kelly said. “And manufacturers would rather spend that money investing in their companies and creating jobs and innovating to try to address the problems the lawsuits purport to address.”

Kelly pointed out that one of the lawsuits made it all the way to the Supreme Court in 2011, American Electric Power v. Connecticut, where it was struck down in a unanimous 8-0 decision. The justices ruled that fossil fuel companies could not be sued for greenhouse gas emissions because federal law dictates that the Environmental Protection Agency regulates carbon dioxide under the Clean Air Act.

The climate change lawsuit was the first based on a public nuisance claim.

The manufacturers' pushback is in the beginning stages, but it is expected to become as prominent as the trade group's nationwide campaign against the Obama administration's strict ozone standards for smog, which would have placed pristine national parks out of compliance with nation air quality standards. The campaign released almost weekly reports on the detrimental effects of the pollution rules on specific cities and regions.

Full story

5) Trump Races to Pick Judges Who Oversee Climate Court Cases
ClimateWire, 27 November 2017 
Robin Bravender and Scott Waldman

The president’s court picks could help his climate legacy endure long after Trump leaves office

President Trump has dismissed global warming as a hoax, snubbed the Paris emissions pact and scrapped U.S. EPA climate rules.

But executive actions can be fleeting—as the Trump administration has shown by moving swiftly to unravel many of President Obama's climate change policies.

Yet there's a major piece of Trump's climate legacy that could be more enduring: his court picks. The Trump administration has acted expeditiously to fill vacancies on top courts around the country, including the Supreme Court and powerful lower courts that could decide the fate of regulatory challenges and novel lawsuits, like localities suing oil companies for damages caused by sea-level rise. Those judges could be weighing in on climate change cases long after Trump leaves 1600 Pennsylvania Ave.

Trump's judicial appointments rank "pretty high" in terms of his climate change legacy, said Glenn Sugameli, who runs the Judging the Environment project, which tracks judicial nominees' environmental records.

"They're the ones that are going to determine whether the actions taken by the Obama administration, by states and local governments are justified, are legal, are sustainable," he said. And "they're the ones that are going to decide whether the actions taken by the Trump administration are legal."

Richard Lazarus, an environmental law expert and professor at Harvard Law School, said courts have played an "outsized role" in climate policy in recent years because regulators are working with an old law to deal with a problem its authors weren't specifically addressing.

"The reason why the courts play a big role right now is that, whether the executive branch is run by [President George W.] Bush or the executive branch is run by Obama, each time they're kind of stuck with old language," Lazarus said, noting that the 1970 Clean Air Act hasn't seen a major overhaul since 1990.

The Obama administration tried to use the existing language to support the administration's signature climate rule, the Clean Power Plan, and "you can expect that Trump judges would be more skeptical of those activities."

Trump has already picked one Supreme Court justice, Neil Gorsuch, a conservative whose appointment was viewed by some as a nail in the coffin for legal efforts to preserve the Clean Power Plan. Court watchers predict Trump may make one or more additional Supreme Court nominations before his term expires.

Legal experts note that judges' opinions in environmental cases won't necessarily fall strictly along ideological lines, but that conservative judges are often more likely to reject arguments calling for more regulation or trying to fit climate change rules within the existing Clean Air Act.

Lazarus pointed to Brett Kavanaugh, a conservative judge on the U.S. Court of Appeals for the District of Columbia Circuit, as an example of a jurist who "is not ready to give EPA a lot of deference if they're taking language which was crafted at one time and trying to push it at the edges to deal with a problem of another time, like climate change." Kavanaugh, a Bush appointee who sits on the court that hears challenges to Clean Air Act rules, became known as a vocal critic of Obama EPA rules.

Kavanaugh's name was tacked on earlier this month to a list of Trump's potential Supreme Court nominees. Trump has touted the fact that the names on his list—some of whom he has already appointed to lower court jobs—have been vetted by "respected conservative leaders."

The judiciary's role over climate policy could change, Lazarus said. "If Congress steps up to the plate, then the courts won't be so significant.

But recent efforts on Capitol Hill to tackle climate change have foundered, and the political polarization in Congress makes the prospects for such controversial legislation dim. So in the near term, executive actions are likely to continue, as are efforts to unravel them in court.

Beyond challenges to federal rulemaking, many of which are resolved in the D.C. Circuit court, there are other climate lawsuits underway across the country that could ultimately be heard by Trump appointees.

Full story

6) Rupert Darwall: A Veneer of Certainty Stoking Climate Alarm
Competitive Enterprise Institute, November 2017

Foreword by Judith Curry, President of the Climate Forecast Applications Network and former Professor and Chair of the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology

While the nations of the world met in Bonn to discuss implementation of the Paris Climate Agreement, the Trump administration was working to dismantle President Obama’s Clean Power Plan and to establish a climate “red team” to critically evaluate the scientific basis for dangerous human-caused climate change and the policy responses.

The mantra of “settled science” is belied by the inherent complexity of climate change as a scientific problem, the plethora of agents and processes that influence the global climate, and disagreements among scientists. Manufacture and enforcement of a “consensus” on the topic of human-caused climate change acts to the detriment of the scientific process, our understanding of climate change, and the policy responses. Indeed, it becomes a fundamentally anti-scientific process when debate, disagreement, and uncertainty are suppressed.

This essay by Rupert Darwall explores the expressions of public certainty by climate scientists versus the private expressions of uncertainty, in context of a small Workshop on Climate organized by the American Physical Society (APS). I was privileged to participate in this workshop, which included three climate scientists who support the climate change consensus and three climate scientists who do not—all of whom were questioned by a panel of distinguished physicists.

The transcript of the workshop is a remarkable document. It provides, in my opinion, the most accurate portrayal of the scientific debates surrounding climate change. While each of the six scientists agreed on the primary scientific evidence, we each had a unique perspective on how to reason about the evidence, what conclusions could be drawn and with what level of certainty.

Rupert Darwall’s essay provides a timely and cogent argument for a red/blue team assessment of climate change that provides both sides with an impartial forum to ask questions and probe the other side’s case. Such an assessment would both advance the science and open up the policy deliberations to a much broader range of options.

- Judith Curry, Reno, Nevada, November 7, 2017

A Veneer of Certainty Stoking Climate Alarm

Introduction. How dependable is climate science? Global warming mitigation policies depend on the credibility and integrity of climate science. In turn, that depends on a deterministic model of the climate system in which it is possible to quantify the role of carbon dioxide (CO2) with a high degree of confidence. This essay explores the contrast between scientists’ expressions of public confidence and private admissions of uncertainty on critical aspects of the science that undergird the scientific consensus.

Instead of debating, highlighting and, where possible, resolving disagreement, many mainstream climate scientists work in a symbiotic relationship with environmental activists and the news media to stoke fear about allegedly catastrophic climate change, providing a scientific imprimatur for an aggressive policy response while declining to air private doubts and the systematic uncertainties.

Read the full study here.

The London-based Global Warming Policy Forum is a world leading think tank on global warming policy issues. The GWPF newsletter is prepared by Director Dr Benny Peiser - for more information, please visit the website at

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