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Courting disaster

12 Jun 2024 | OP ED Watch

In a number of areas climate activists are trying to get from the courts things they cannot get from voters. Which isn’t surprising given the way the judiciary in most Western countries is considerably more progressive-friendly than the electorate. But we are a bit surprised that the city and county of Honolulu are trying to get the U.S. Supreme Court to declare oil companies liable for climate damages thereby rewriting climate policy for the entire nation. And also that whereas most such tort actions demand that the defendant (technically “tortfeasor” at least in Canada) stop doing whatever is supposedly harming the complainant, these plaintiffs would be appalled if told no more gas or oil would be sold in Hawaii. There’s a certain malicious wish to see the companies go ahead and tell them anyway, and see how Hawaii does without aviation fuel, diesel for ships, natural gas for appliances and gasoline for cars. And if the companies voluntarily restricted fuel supplies out of the goodness of their hearts it would be a conspiracy in restraint of trade and subject to federal antitrust enforcement. Which no doubt the courts would also punish.

These end-runs are surprisingly popular among people who, if confronted, would almost certainly claim to believe in democratic self-government. Back in March Heatmap was all excited about a new legal strategy to replace the dud employed thus far, noting first that:

“Dozens of cities and states have tried to sue the oil industry for damages related to climate change over the past several years, and so far, none of these cases has been successful. In fact, not one has even made it to trial.”

It then made a statement with no foundation in science:

“In the meantime, the price tag for climate-related impacts has climbed ever higher, and states are growing more desperate for help with the bill.”

So onward and upward:

“Out of that desperation, a new legal strategy was born, one that may have a better chance of getting fossil fuel companies to pay up. And Vermonters may be the first to benefit. It’s called a climate superfund bill, and versions of it are floating through legislative chambers in New York, Massachusetts, and Maryland, in addition to Vermont. Though each bill is slightly different, the general premise is the same: Similar to the way the federal Superfund law allows the Environmental Protection Agency to seek funds retroactively from polluters to clean up contaminated sites, states will seek to bill fossil fuel companies retroactively for the costs of addressing, avoiding, and adapting to the damages that the emissions from their products have caused.”

If it worked the possibilities would be endless… for rubbish economics driving rubbish policy. For instance:

“The first step is for the state Treasurer to assess the cost to Vermont, specifically, of emissions from the extraction and combustion of fossil fuels from 1995 to 2024, globally.”

Such an effort might run into problems like the absence of a global increase in adverse weather events, crop failure etc. Or the fact that, an alert reader informs us, “Vermont has a major flood every ten years on average according to the Vermont Historical Society” which it does. Or not, since the attribution attributors, our modern version of scapulamancors, have models that can easily blame the next one on CO2 (or anything else bad). And because the state Treasurer might have made up their mind already with or without a covetous eye on a massive source of revenue that bypasses that antique “no taxation without representation” rubbish. Or perhaps conspiracy theories.

The Heatmap piece concedes that the Superfund law relies on a key question:

“Did the companies understand that their activities were potentially harmful at the time they engaged in them?”

And you know what’s coming, right? Right. A Dan Brown novel about Exxon:

“By now there’s a mountain of evidence that fossil fuel companies like Exxon did, in fact, know how damaging their products would be several decades before the period covered by the Vermont bill, based on internal research not shared with the public at the time. But Ben Edgerly Walsh, an advocate at the Vermont Public Interest Research Group, told me that even absent that evidence, they should have recognized the risk based on the scientific consensus that emerged in the 1970s and 1980s. To wit: Vermont chose 1995 as the start year for its bill because that’s when the first United Nations climate change conference was held.”

And it gets worse, as these things will:

“Underpinning the bill – as well as many of the related lawsuits – is the advancement of ‘attribution science,’ or the ability to quantify the economic losses that a region has borne due to anthropogenic climate change, as well as future losses that are already baked in, and then attribute them back to particular emitters.”

Ability isn’t quite the word here. But the potential for damage is enormous. And if it happens, where does reliable energy go, since anyone being ripped blind for having sold gasoline in 1979 because of a UN conference in 1995 would have to be insane to keep selling it in 2029.

You might think the possibility is remote from a judicial standpoint. But the U.S. justice system is not their proudest achievement, including in a case the Manhattan Contrarian notes, Juliana v. United States, that has been going on for nine years now with three efforts by the defendant, the federal government, to have the same court (the Ninth Circuit Court of Appeals) dismiss as non-judiciable the question whether Washington has to force everyone to stop making fossil fuels. Imagine the chaos, and resentment, if a court said it did.

The Contrarian adds another point about where Vermont’s lawfare may end up:

“Isn’t every citizen of Vermont a user of fossil fuels? How about the state itself? Exxon may have produced a bunch of gasoline by pumping crude oil and refining it down in Texas, but the state of Vermont is the one that made all those emissions by running a fleet of cars and trucks and heating all its buildings. Is the state prepared to restrict at all the use of fossil fuels in its territory, or is it just going to pretend that nobody but the fuel producers has any role in making emissions? I can’t wait to see how the litigation back-and-forth plays out. Many possibilities suggest themselves. One likelihood is that the producers could raise prices to their Vermont distributors to recoup whatever extra costs Vermont imposes on them, thus effectively passing any damage claims right back to the Vermont consumers. Or potentially the oil companies could join into the litigation as third-party defendants all the citizens of Vermont and the state itself. That would be fun.”

No. Not really. And indeed in editorializing on this particular case the Wall Street Journal notes that similar claims made in federal court were slapped down by the Supreme Court on the grounds that “it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest.”

So trying to do an end run via state courts is not a little sneaky and unlikely to work. But if it does, the Journal also points out, it would make a hideous mess of federalism by letting a state court dictate national policy.

This issue was also raised, and apparently dealt with, before the Second Circuit Court of Appeals in 2021, dismissing a similar suit by New York City. But again that ruling rather mixed up the issue of courts versus legislatures and that of national versus state institutions, leaving at least a potential window.

The suit remains ridiculous. The Hawaii Supreme Court said it could proceed because it only “seeks to challenge the promotion and sale of fossil-fuel products without warning.” What warning? Should gas stations have signs saying “Danger, gasoline sold here?”

It’s one thing for companies that aim to rally round the white flag, including ad campaigns that exaggerate their actual progress toward Net Zero and other impossible goals, to find themselves hit in court with suits for false advertising. Like Danish Crown, a pork producer, rebuked judicially for claiming its pigs were “climate controlled”, whatever that even means. And it rather serves them right.

That so-called “greenwashing” is often abetted by governments is unlikely to prove a compelling defence, we might add. And measures to invite lawsuits over any and all claims that don’t satisfy extremists might have the paradoxical effect of forcing firms to stop groveling and start standing up for themselves. Besides, to return to the Danish case, Denmark has more pigs than people, and if some judge orders them all slaughtered to save the planet, people will wonder where their food went, not necessarily politely.

Moreover, as the Journal observed:

“The Clean Air Act permits states to regulate emissions within their borders, but not beyond. Yet the Honolulu lawsuit aims to control emissions globally. Honolulu says ‘it is not possible to determine the source of any particular individual molecule of CO2.’ So the only way for companies to avoid potential liability is to stop producing and selling products everywhere.”

One shudders to imagine the unraveling of American institutions if the Supreme Court really did say that Honolulu could order all Americans to go without oil and gas and some nitwit tried to enforce it. But evidently climate activists don’t.

P.S. As of 2016 Hawaii got 83% of its energy from oil. The usual suspects say it will be 70% renewable by 2030 but if not, well, they’re not exactly grounded in reality anyway.

2 comments on “Courting disaster”

  1. It would seem that the only people guaranteed to make money out of all the pending lawsuits about climate change are the lawyers. Would I be accused of being a conspiracy theorist if I suggested that a lot of the climate hysteria might be traced back to law firms?

  2. Years ago,gas stations used to have signs on their pumps informing(warning?) people that their gasoline contained lead.But this is all beyond the pall
    anyway.You want to sue the oil companies but you still use their products anyway?But yes,the only true winners in all this litigation are the lawyers.

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