This week’s climate canary is Andrew Roman, a Canadian lawyer who spent his career working on energy and environment-related litigation, including helping green NGO’s back in the day when they were concerned with, you know, fighting pollution rather than just making everyone (but themselves) worse off through climate nuisance suits. In his essay, Roman surveys the global scope of climate litigation which, as with so much else in the climate movement, seems to run on limitless funds (though they say we deniers have all the money) and a total absence of common sense. Because at the heart of the litigation is a basic scientific error so obvious the cases never should have gotten as far as they did.
Roman calls it the glass dome fallacy. The climate of Ontario is not controlled by carbon dioxide emissions from Ontario. Emissions from Beijing, Dubai, New Delhi and anywhere else you care to mention have as much effect on Ontario’s climate as emissions from Toronto. Likewise, emissions from Toronto don’t stay in Toronto, they go into the global pool and have as much effect everywhere else as they do here. Indeed, emissions from Beijing do not stay in Beijing (unlike, say, actual air pollution like smog, whose effects are mostly local) though of course there are a lot more of them than from Toronto. So the claim (as one Ontario case put it) that the plaintiffs’ human rights are violated because Ontario’s emission targets aren’t strict enough “assumes that there is an invisible dome above Ontario, keeping Ontario’s emissions within provincial boundaries; and similarly keeping the rest of the world’s emissions out. If there is no glass dome over that jurisdiction to prevent emissions from moving in or out, and if a court cannot control GHG from outside the jurisdiction, the litigation is useless.”
Which is unfortunately true only if you think litigation is intended to get at the truth of the matter, rather than wasting so much time and money that industries simply give up and shut down. But lawfare isn’t about truth, it’s about short-circuiting debate to force your will on others.
Roman goes on to discuss a particularly pernicious side-effect of courts entertaining these cases: a breakdown of the separation of powers in which legislatures make the laws and courts apply them. Courts are not equipped to weigh the costs and benefits of complex policy decisions. They don’t have the capacity or expertise to assess the socioeconomic consequences of policy actions, instead that job belongs to legislatures who answer to the voters. But in Europe, courts have already crossed the line by issuing rulings requiring governments to set more stringent GHG targets than the voters had demanded.
If the same thing happens in Canada, Roman points out, the worst economic consequences will ironically fall on the youth population, even as the courts entertain nuisance lawsuits that claim to be fighting on behalf of today’s youth. As for the supposed environmental benefits, the reality is no order from an Ontario court can affect the climate of Ontario, and likewise for every jurisdiction in the world.
The glass dome fallacy and the conceit of courts thinking they can issue orders that affect the local climate are very real threats to global economic prosperity. Roman points out that the climate litigation industry is massive, global and well-funded, with specialized law firms and teams of friendly scientists on call to prepare expert evidence. It has no upside. As Roman notes courts overreaching on climate matters “can only make governance more uncertain, energy more expensive, and democracy weaker.”
Next week: psychology researcher Margaret Anna Alice on losing her religion.
