This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. However,…
---Judge Wm. Alsup
Judge Alsup has spoken. Chevron, ExxonMobil and other of the world’s oil companies, large and small, are breathing easier as a result of his dismissal of the City of Oakland and the People of the State of California v BP P.L.C. et al. The suit is one of several recently filed in both federal and state courts by cities, counties, and states alleging they have suffered a redressable harm at the hands of the big oil.
In addition to Oakland and a series of other suits pending in California, New York City has initiated a case against ExxonMobil as has the City of Boulder, Colorado. The plaintiff cities and states are following the same paths taken earlier in tobacco and asbestos suits. Those cases were pursued under state nuisance laws, which are more settled than federal.
Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. In law, a tort is defined as an act or omission giving rise to an injury or harm to another. Specifically, under federal common law, a public nuisance is an unreasonable interference with a right common to the public good.
Although the Oakland case began in the state court, the defendant oil companies prevailed in their motion to have it removed to the federal level. The removal order was the defendant oil companies’ first victory in the case and was issued by Judge Alsup; the same judge who just issued the dismissal order.
The reason Alsup granted the removal order from state to federal court was straightforward. He worried that if a precedent was established to hear these types of cases in state courts, it could lead to [a] patchwork of fifty different answers to the same fundamental global issue [which] would be unworkable…. Given that other local jurisdictions, e.g., New York City, are bringing similar suits against the major oil companies, the patchwork problem is hardly hypothetical.
…there is an easy, capitalist fix: return all the money raised directly to the people, thereby offering all Americans tangible benefits in the here and now.
Tax Be Nimble--
A new group of well-respected business and government leaders formally entered the environmental fray in recent days. Led by the former Republican Senate Majority Leader, Trent Lott (R-MS), and the former Democratic Senate Deputy Majority Whip, John Breaux (D-LA), Americans for Carbon Dividends (AFCD) are advocating the adoption of the Baker-Shultz Carbon Dividends Plan (hereinafter Baker-Shultz).
The organization is new; the proposal is not. The Dividends Plan, named for the former secretaries of state James A. Baker III and George P. Shultz—both with long and distinguished careers in government and solid Republican conservative credentials—was released by the Climate Leadership Council in 2017.
The basics of the plan are this:
Of the two organizations, it appears that AFCD will lead advocacy efforts in the political arena as a tax-exempt 501(c)(4) corporation. The designation allows the group to run paid advertising, lobby policymakers and otherwise undertake media campaigns to build support for the idea. CLC’s 501(c)(3) status constrains its political activities.
I have written regularly over the past 18 months about the rising number of environmental lawsuits being filed each year in US and foreign courts. (see Figure 1) In each of the dozen or more articles, I have consistently stated:
Today, I would like to focus more forcefully on the last of these four bullets—why winning in the court will not win the war on climate change—than I previously have.
I do this not to suggest anyone should refrain from pursuing their government given-right to seek redress for their and Nature’s grievances nor to diminish the importance of doing so. The fact is winning in court is not all it’s cracked up to be given the length of time it takes for a case to be decided and judicial orders to be enforced, the possibility of reversals of lower court decisions by appellate courts, and the political vulnerability of all judicial decisions even those of the US Supreme Court (SCOTUS).
Before getting into the substance of the argument, permit me to declare the only proper conclusion that should be drawn from it--
Judicial decisions that favor climate defenders, in whatever guise, e.g., constitutional protections, compensation under tort laws, or in defense of civil disobedience [i], will fail to keep the rate of global warming within habitable bounds unless and until they lead to an aggressive and stable national integrated energy and environment policy.
Judicial limits are as much practical as theoretical. Consider, for example, who can sue. Although courtroom doors are theoretically open to everyone, once through them, plaintiffs must establish their right to proceed to trial.
Lately, I’ve been wondering if the battles being fought to maintain federal energy and environment policies and programs are clouding the nation’s collective understanding of what the war being waged against the Trump administration is really about?
Before suggesting what it—the metaphorical war of which I write--should be about, let me say it is not about The Donald. At least, it is not only about him, much as he would probably like it to be. Trump is but the current poster boy for climate deniers. Granted he has a lot to do with the current disheveled state of federal climate affairs. The Big D, however, is merely the intellectually slavish embodiment of the nation’s much more significant problem—the lack of an integrated, stable, long-term energy and environment policy.
The problem pre-dates Trump. Although, #President-Lie-Baby can truthfully claim credit for plumbing new depths of the off-again portion of the feast and famine cycle that characterizes federal clean energy and environmental programs and policies. His is not the first administration to dismiss clean energy technologies as fitting subsidiaries of the Rube Goldberg Industrial Empire.
As Trump is not the actual problem, he offers little hope of being the solution. When was the last time Congress—any Congress—enacted or even considered a national energy and environment policy? The answer is not in the lifetime of most anyone who might be reading this article.
Federal decisionmakers have not considered and acted on energy and the environment in the context of an integrated national policy at least since the efforts that led to the creation of the US Department of Energy in 1977. Even then, the consideration of the environment was incidental to the energy portions of the organization effort. The connection, however, was at least made.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.