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Climate Crackpots Lose in Court Again

January 24, 2020

Climate Change Weekly #348

For the second time in two months, a court tossed out a lawsuit brought by climate cranks, this time supposedly representing kids.

A three-judge panel of the Ninth Circuit Court of Appeals dismissed a lawsuit brought on behalf of 21 youths by the climate legal advocacy group Our Children’s Trust against the federal government in an attempt to force it to impose limits on fossil fuel use.

This decision arrived just a month after New York state Supreme Court Justice Barry Ostrager dismissed a lawsuit brought by state Attorney General Letitia James against ExxonMobil, in which she accused the company of lying to investors about its business prospects in light of the possible costs of government regulations to fight climate change.

“The office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor,” Ostrager wrote in his decision.

Ostrager dismissed the case with prejudice, meaning it cannot be brought again based on these facts in New York.

In the case the Ninth Circuit Court dismissed on January 17, Kelsey Cascadia Rose Juliana et al. v. The United States of America et al., 21 youths aged 10 to 21 sued the federal government in a federal district court in Oregon arguing the government violated their constitutional rights to life, liberty, and property by encouraging the use of fossil fuels, which produce greenhouse gases the plaintiffs allege damage the climate system.

When the case was initially filed in 2015, the Obama administration tried to have it dismissed, but the federal district judge denied its request.

The Trump administration inherited the Obama administration’s appeal of the district court’s decision then pending before the Ninth Circuit Court in 2017. The latter court granted a temporary stay on the lawsuit, allowing the newly installed Trump administration to develop its own response.

On appeal, the Trump administration argued, as the Obama administration had before it, the youths lacked standing to sue the federal government for any purported harms from climate change, as any damages it might cause them were not unique or particularized to them, a criterion for standing to sue.

Calling the youths’ lawsuit “a direct attack on the separation of powers,” the Trump administration additionally argued even if the youths had standing to sue, the legislature and the executive, not the courts, were the appropriate branches of government for determining the nation’s energy policies and responses to climate change.

In a two-to-one decision, the three-judge panel agreed on both points.

The youths lacked standing to sue the federal government, and the court didn’t have the authority to dictate climate policy, wrote Ninth Circuit Judge Andrew Hurwitz, an Obama administration appointee, in his majority opinion.

The plaintiffs lacked standing to sue, said Hurwitz, because they could not show the policies had done them any direct harm. Their injuries were not “concrete and particularized,” Hurwitz wrote.

“The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2,’” Hurwitz wrote. “Reluctantly, we conclude that such relief is beyond our constitutional power.

“Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” wrote Hurwitz. “[A]ny effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”

The panel sent the case back to the lower court for dismissal.

Even the most liberal court in the nation couldn’t stretch the law far enough to allow this flawed lawsuit to proceed, said my colleague James Taylor, director of the Arthur B. Robinson Center for Climate and Environmental Policy at The Heartland Institute, in a press release.

“It is hard to imagine a more thorough rebuke of climate-lawsuit nonsense than having the ultraliberal Ninth Circuit rule against such lawsuits,” said Taylor. “These young puppets of the well-funded climate alarmism establishment had no standing to make their claims and no science to back them up.

“Even the nation’s most liberal judges made that clear today,” Taylor said.

Meteorologist Anthony Watts, a senior fellow with The Heartland Institute, says the two cases were driven by climate special interests, with each relying on a false portrayal of the state of the climate.

“Just like the recent case against Exxon-Mobil in New York that was dismissed, this case by ‘climate concerned children’ was prompted and powered by climate activist interests,” Watts said. “In both cases, huge amounts of money, time, and legal expertise were thrown at these claims in an attempt to make a legal case that climate change has been harmful. Both cases were dismissed.

“It is hard to argue that an increase of about 1 degree centigrade has been detrimental to humanity,” said Watts.

In Juliana, the court rightly concluded it was beyond the judiciary’s constitutional authority to impose a nationwide climate policy, said Sam Kazman, general counsel with the Competitive Enterprise Institute, in a statement.

“The court correctly understood that a lawsuit aimed at imposing a national plan to eliminate fossil fuel emissions and reduce atmospheric carbon dioxide would push the court far beyond its constitutional powers,” Kazman said. “It would require the court to substitute its judgment for that of Congress and the [presidential] administration on an unprecedented scale.”

Surely there are better uses for the millions of dollars in public and private funds, and thousands of hours of effort of the lawyers, public officials, and scientists involved in bringing and defending against these flawed lawsuits, which courts have tossed time and again, only to spring up again in other federal or state jurisdictions like a costly game of whack-a-mole.

Whether it’s ill-informed kids being manipulated by radical environmentalists to sue over purported future climate damages, or cities and states suing oil companies hoping for a big payday, it is time for federal and state courts to say enough is enough and toss all such lawsuits. As the Ninth Circuit recognized, it’s the job of the elected branches, not the judiciary, to determine national climate and energy policies.

—    H. Sterling Burnett

SOURCES: The Heartland Institute; Law.com; Environment & Climate News


IN THIS ISSUE …

Coral reefs not impaired by climate change Bounce-back from volcanos accounts for much warmingSignificant climate policy requires socialism, writes Klein


CORAL REEFS NOT IMPAIRED BY CLIMATE CHANGE

Some scientists may finally get their comeuppance for possibly fraudulent and certainly badly wrong research claiming human-caused climate change is causing irreparable damage to fish species dependent on coral reefs.

Australia’s James Cook University has launched an investigation into researchers at its Australian Research Council Centre of Excellence for Coral Reef Studies (ARCCECRS), after a new study published in the journal Nature demonstrated none of the findings in eight separate research papers from ARCCECRS scientists, purportedly describing catastrophic effects of human-caused climate change on coral reefs and the fish species that depend on them, were replicable.

This comes a year after an Australian federal court awarded scientist Peter Ridd, Ph.D., $1.2M after James Cook University was found to have wrongfully fired him after he publicly challenged research published by ARCCECRS scholars claiming damage to coral reefs from climate change. The university chose to blame the messenger, Ridd, and ignore his message. Now the university seems to have changed its tune, having appointed an external panel, led by a former federal judge, to examine evidence of misconduct by the coral reef center’s staff.

In the Nature paper, “Ocean Acidification Does Not Impair the Behavior of Coral Reef Fishes,” an international team of researchers from universities and research centers in Australia, Canada, Norway, Sweden, and Switzerland attempted to replicate the published results of ARCCECRS that climate change is likely to impair and harm coral-reef-dependent fish species. Among other findings, the Nature paper concludes high carbon-dioxide concentrations will not cause small reef fish to lose their ability to smell predators, or worse, become attracted to the scent of predators; become hyperactive; or have impaired vision, as ARCCECRS researchers had claimed in a series of papers published in peer-reviewed journals.

The international research team could replicate none of the James Cook University scholars’ findings, writing,

[W]e comprehensively and transparently show that—in contrast to previous studies—end-of-century ocean acidification levels have negligible effects on important behaviors of coral reef fishes, such as the avoidance of chemical cues from predators, fish activity levels, and behavioral lateralization (left–right turning preference). Using data simulations, we additionally show that the large effect sizes and small within-group variances that have been reported in several previous studies are highly improbable. Together, our findings indicate that the reported effects of ocean acidification on the behavior of coral reef fishes are not reproducible, suggesting that behavioral perturbations will not be a major consequence for coral reef fishes in high [carbon dioxide] oceans.

SOURCES: Nature; Global Warming Policy Forum; Times Higher Education


BOUNCE-BACK FROM VOLCANOS ACCOUNTS FOR MUCH WARMING

Roy Spencer, Ph.D., a principal research scientist at the University of Alabama in Huntsville, recently ran an ocean feedback model to test the relative impact of human greenhouse gas emissions against human aerosol emissions and emissions from volcanos on sea-surface temperatures. Spencer found 41 percent of the increase in ocean temperatures since 1979 reported in the Hadley Centre Global Sea Ice and Sea Surface Temperature climate model was attributable to two major volcanic eruptions which occurred in the early part of the record.

Spencer notes his findings largely agree with results reported in a 2017 study by his University of Alabama in Huntsville colleagues John R. Christy, Ph.D. and Richard T. McNider, Ph.D. in the Asia-Pacific Journal of Atmospheric Sciences, where they estimated 38 percent of the post-1979 warming trend was caused by volcanic activity.

SOURCES: Dr. Roy Spencer


SIGNIFICANT CLIMATE POLICY REQUIRES SOCIALISM, WRITES KLEIN

In her new book, On Fire: The (Burning) Case for a Green New Deal, critic of capitalism extraordinaire Naomi Klein forthrightly admits what we at The Heartland Institute have long said: only a socialist takeover of the economy, which the Green New Deal would be, can halt carbon-dioxide emissions in the short term, which climate alarmists such as Klein and Rep. Alexandria Ocasio-Cortez (D-NY) claim is necessary to avert a climate catastrophe.

Klein admits halfway measures, such as buying green products or modestly taxing fossil fuels, won’t work. As investigative researcher Ken Braun writes in his discussion of her book, Klein says “we cannot ‘sustain the impossible dream of luxury for all’ and that ‘air travel, meat consumption, and profligate energy use’ must go on our chopping block.”

Klein describes conversations she had with attendees at The Heartland Institute’s 2011 International Conference on Climate Change who called “her brand of climate alarmism ‘an attack on middle-class American capitalism’ and a ‘Trojan horse whose belly is full with red Marxist socioeconomic doctrine.’” Klein then writes, “Here’s my inconvenient truth: they aren’t wrong. The deniers did not decide that climate change is a left-wing conspiracy by uncovering some covert socialist plot. They arrived at this analysis by taking a hard look at what it would take to lower global emissions as drastically and as rapidly as the climate science demands.”

As Braun summarizes Klein, “Their assumption that ‘capitalism itself’ is ‘coming under threat’ is not happening ‘because they are paranoid,’ she concludes, but instead ‘because they are paying attention.’”

When Heartland Institute researchers and other climate realists say the true goal of those claiming humans are causing a climate catastrophe is to replace democratic capitalism with authoritarian socialism, don’t take our word for it. Take theirs.

SOURCES: On Fire: The (Burning) Case for a Green New Deal; Capital Research Center
Author
H. Sterling Burnett, Ph.D., is a Heartland senior fellow on environmental policy and the managing editor of Environment & Climate News.
hsburnett@heartland.org