As the public debate about the causes and consequences of climate change remains politically charged and as legislative responses elude policymakers, the nation’s courtrooms have become the issue’s principal battleground. Over the past several years I have often written about the politicization of climate policy and the judiciary’s rise as the default driver of the nation’s environmental policy.
Limited by matters of procedure and precedence, courts of law are imperfect venues in which to debate and decide government’s responsibility to protect its citizens and future generations from the ravages of global warming. In this time of hyper-partisanship and government gridlock, the judiciary is the only fully functioning federal branch of government in terms of making reasoned and stable decisions. How long that will last, the given character of Trump’s nominees to the federal bench remains a mystery.
Although hardly responsible for the political divisions that have led to years of legislative and executive gridlock, Donald Trump has deepened the divide and is ushering in an era in which the judiciary has become the target of partisan attacks. The President’s Twitter attacks of judges based on their ethnicity and his visceral dislike of their decisions are encouraging others to assault the legal system and the rule of law.
Today I am writing about an organization—the Government Accountability and Oversight (GAO) group—determined to diminish the public’s confidence in the overwhelming consensus of the science community about the causes and consequences of climate change and the rule of law. According to the organization’s founders:
…today’s environmental movement is increasingly dominated by a determined and well-funded fringe who are pushing their own center to dubious legal propositions. Among these is a campaign that can only be described as a shakedown operation directed against energy companies. (emphasis added)
In GAO’s own words, its formation is a response to the recent raft of “spurious” lawsuits being brought by environmental advocates and self-serving state and local government officials based on the research of feckless scientists. The suits are generally of two types. Those in which the private citizens are seeking to establish their constitutional right to a habitable and sustainable environment, e.g., Juliana v EPA. Second are those by states, counties, and cities seeking damages from major fossil fuel companies, e.g., People of California v. BP, Chevron, ConocoPhillips, et al.) (for a more detailed discussion on these cases Civil Notion)
The later climate cases are similar to those brought against tobacco companies in the 1990s that resulted in billions of dollars in settlement costs. Like the tobacco cases, plaintiff state and local jurisdictions are accusing the defendant companies of a tortious disregard of the known consequences of extracting and refining fossil fuels on the health and welfare of their communities. Also, like the tobacco cases, the defendants are claiming consumers of fossil fuels are to blame not the supplier, i.e., no one is forcing them to use polluting energy sources. Should the plaintiff jurisdictions prevail in court, the companies will be facing billions of dollars in awarded damages.
Specifically, the GAO names [T]he Rockefeller Family, hedge fund billionaire Tom Steyer, and trial lawyer- activists…[as] have found common cause with environmental organizations to enlist aggressive and ambitious politicians such as New York Attorney General Eric Schneiderman in using their offices to promote the climate agenda.
In pursuit of its objectives, GAO has established a subgroup. Climate Litigation Watch is...a 501(c)3 legal non-profit…dedicated to providing a complete, accurate and objective record of litigation related to climate change.
Quoting GAO Climate Litigation Watch (CLW) will serve as a clearinghouse for documents in pending court cases, news coverage, background information on the key players…be they activists, financial backers, or litigators. It will provide commentaries and analysis, posting and placing in context important information gleaned from Freedom of information Act (FOIA) requests.
Climate Litigation Watch seeks neither to disprove scientific theories nor advocate for specific policies. Its sole purpose is to ensure the public record about this explosion of litigation, in the name of “climate accountability,” is complete [so as] to allow a more honest, fact-driven and well-informed debate. (emphasis added)
On the surface, the goals and objectives of GAO and CLW appear as honest attempts at truthful and transparent reporting. The reality is something quite different—beginning with the organization’s name.
Say “GAO” to anyone even passingly familiar with politics and the federal government, and they would likely think you were talking about the U.S. Government Accounting Office—an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends taxpayer dollars.
The use of the acronym GAO may of course just be a coincidence. Although the appearance of their website, e.g., the use of the Supreme Court building as its backdrop, could suggest a more deliberate effort to appear an appendage of the federal government. (see Figure 1)
The acronym GAO and the appearance of the Supreme Court Building on their website are not the only concerning issues. GAO’s claims of neither getting involved in the scientific debate nor advocating for specific policies are at the least misleading. Science is at the core of the current batch of climate-related lawsuits—whether those seeking to expand constitutional protections to include a citizen’s right to a healthy environment or to establish the tortious culpability of fossil fuel companies.
Earlier lawsuits were also about the science of climate change. The Massachusetts v EPA case confirmed the Agency’s authority to regulate GHG emissions under the provisions of the Clean Air Act. The authority, however, was contingent on a scientific finding that carbon and other GHG emissions coming out of a car’s tailpipe could reasonably be considered a contributing factor of global warming AND that Earth’s warming was harmful to the health and welfare of society.
In its purest form, the history of the national climate debate is between those who believe the preponderance of scientific research and those
who do not. Because the political affiliations of the defenders and deniers fall mainly along party lines, the debate is accurately
described as hyper-partisan.
Technically it may be said that GAO is not advocating for specific policies. To my knowledge, the organization has not explicitly promoted deregulation of the environment or the imposition of mandated reliance on coal and other fossil fuels. However, by calling the filed cases spurious and only quoting sources that deny the preponderance of scientific evidence that is the basis of regulation, GAO is taking a policy stand. The same anti-regulatory stance taken by the Trump administration and a majority of Republicans in Congress.
GAO/CLW is not above misrepresenting the work of others to support their positions. For example, on May 18th the organization posted an article attacking King County, Washington for filing a suit against several major oil companies in the state’s superior court. The county is home to the city of Seattle and is the 13th largest in the country.
The suit parallels recent tort cases filed by the cities of San Francisco and New York. The article’s author clearly states: that one of the area’s most prominent “climate” advocates, University of Washington professor Cliff Mass, firmly disputes the claim that energy companies have caused rising sea levels, one of the key harms alleged in the lawsuit. Following the statement, the author explains that sea levels are not accelerating appreciably and that the rise began more than a century ago.
What the article fails to make clear is that Cliff Mass, a well-respected climatologist agrees with 97 percent of the world’s scientists about the causes and consequences of global climate change. It is true that Professor Mass doesn’t attribute the currently higher than normal sea levels off the coast of Washington to global warming. However, he believes that over f time rising West Coast sea levels will rise as the result of climate change—just as those currently on the East Coast are. The current differential, according to Mass is short-term weather patterns. A fact certainly known to the author as s/he included in the article a link to a more accurate description of Professor Mass’ position.
Similarly, the author could have taken the five minutes it took me to determine that the professor stands firmly with supporters of various public policies for combatting climate change including the levy of a carbon tax. Other of the professor’s positions can be found on his blog.
GAO doesn’t just selectively quote portions of the positions and statements of widely recognized experts like Professor Mass to support its claims. It denies the truth of mainstream climate-science and denigrates the scientists by labeling both as half-baked. As proof of FAKE SCIENCE, GAO/CLW offers up the research of leading denier organizations like the Competitive Enterprise Institute (CEI) and the Independent Petroleum Association of America’s (IPAA) Energy in Depth project.
Typical of the GAO’s sources of information is The Deplorable Climate Science Blog, which may be found at https://realclimatescience.com/100-of-us-warming-is-due-to-noaa-data-tampering. Below is a screenshot of the interactive lead image on the Blog’s website.
Of all GAO’s attack strategies, the one I find most disturbing and unethical is its personal assault on the attorneys representing the plaintiffs in the cases it calls audacious assaults on the legal system, as well as on those covering the cost of litigation, e.g., Tom Steyer. GAO is accusing environmental organizations and individual climate defenders of ad hominem attacks on the climate-denier community. The same type of attacks in which the GAO has now launched.
An ad hominem assault projects any negative character flaw of the attorney on to the case itself. In New York’s suit against ExxonMobil, the plaintiff’s attorney is New York Attorney General Eric Schneiderman. Schneiderman resigned his position weeks ago following the accusations of physical and mental abuse by four women.
If guilty of the charges, there is no disputing the man being a scumbag. Notwithstanding what a low-life Schneiderman might be, the question is whether the sins of the attorney are those of the case? Think of the implications of accepting the truth of such an argument.
Is Donald Trump guilty of any high crime and misdemeanor he was charged with while Michael Cohen represented him? More appropriate to the subject at hand, what would be the impact of EPA Administrator Pruitt’s being found guilty of unethical practices on the lawsuits in support of fossil fuels for which he was a counsel of record? Should proposed EPA actions during his reign as the Agency’s administrator be overturned?
According to GAO’s thinking, ExxonMobil should be found guilty in the New York cases by replacing Schneiderman with a universally recognized good-guy? Is Koch Brothers money any more righteous than Steyer’s? In any event, the merits of the various climate-law cases—now or in the future—are for the courts to decide.
Much to GAO’s chagrin the lawsuits will be decided by the courts based on judicial precedence and procedures—as is both just and right.
In the spirit of transparency, I don’t know what the outcome of any of the lawsuits now before the courts will be. There is no denying that the cases asking the judiciary to make a sustainable and healthy environment a constitutionally protected right may be found to have no legal merit. Equally the efforts of New York City and King County, Washington in their damage cases against Chevron and ExxonMobil could be thrown out for any number of reasons—scientific, economic or procedural.
What I do know—with certainty—is that GAO’s pejorative personal attacks on the environmental community fail to make good on its promise to de-politicize the climate debate. If anything, they widen the partisan divide.
What GAO knows—with certainty--is that its arguments carry no weight in any court of law. The organization is looking to shore up the far-right’s core supporters and hoping to make some headway in the court of public opinion. Its attack on the judiciary evidences their concerns. First, the plaintiff fossil energy companies, like those in the tobacco cases, will be forced to pay. Second, the federal government will be ordered to become an aggressive protector of the environment.
I’ll end this article the way I started. According to GAO/CLW—the public debate about the causes and consequences of climate change remains politically charged, and as legislative responses elude policymakers, the nation’s courtrooms have become the issue’s principal battleground, and by saying how grateful I am to the founders for our constitutional system of checks and balances.
Lead Image: Screenshot from the Simpsons.
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.