If you have followed my posts on stupid climate litigation closely, you will know that there have actually been multiple candidates for the award as the "stupidest." The first candidate, subject of my post on December 12, 2017, was brought in Oregon federal court by a bunch of teenagers, seeking a complete nationwide ban on the use of fossil fuels. (That one, having survived an attempted appeal to the Ninth Circuit, is headed for trial in a few months!) But then other candidates for the award emerged, notably several cases brought by various California cities and counties seeking vast damages against major oil companies for supposedly causing great warming and maybe sea level rise and some other things that the plaintiffs just know are going to happen but haven't yet. Those lawsuits have also inspired copycat efforts from the likes of New York City, King County (Seattle), Washington, and even Boulder, Colorado. (The sea level would need to rise well over a mile before it endangered Boulder, but whatever.) Those lawsuits got a nomination for the "stupidest" award in this post in January.
The reason for my designating these litigations as "stupid" is that, whatever you might think about whether human use of fossil fuels causes "climate change" (and you know that I don't think much of that theory), the idea that a lawsuit in California against a handful of oil companies -- even very big ones -- can do something meaningful about this "climate change" boogeyman is completely ridiculous. Take the lawsuits brought by the California cities. Although the named plaintiffs are just a few cities, and the defendants are just a few oil companies, the underlying theory is that everyone who uses fossil fuels is harming everyone who lives on the planet. We're all potential plaintiffs, and we're all potential defendants! And we'll fix everything by suing ourselves! It's a particularly absurd instance of the usual touching faith of progressives in the efficacy of our flawed institutions to fix all human problems by issuing some kinds of orders from on high.
The case brought by the Cities of San Francisco and Oakland got removed to federal court, and ended up before a guy named William Alsup, a Clinton appointee and by no means a climate skeptic. Alsup then held a hearing in March that he designated a "tutorial" to educate himself on climate science. Much to my surprise, he asked some intelligent questions (and some less so), covered in this post.
And then the defendants moved to dismiss, some on grounds of lack of jurisdiction (insufficient contacts with California), but one on grounds that federal law does not and should not offer any remedy through the court system in these circumstances. Yesterday, Judge Alsup dismissed the case on that latter theory. Here is a copy of his opinion.
Congratulations to Judge Alsup on perceiving the absurdity of the situation before him. Here are a few choice quotes:
The scope of plaintiffs’ theory is breathtaking. It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the combustion of fossil fuels contributed to the phenomenon of global warming. While these actions are brought against the first, second, fourth, sixth and ninth largest producers of fossil fuels, anyone who supplied fossil fuels with knowledge of the problem would be liable. At one point, counsel seemed to limit liability to those who had promoted allegedly phony science to deny climate change. But at oral argument, plaintiffs’ counsel clarified that any such promotion remained merely a “plus factor.” Their theory rests on the sweeping proposition that otherwise lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas emissions lead to increased global temperatures, constitute a public nuisance.
And Judge Alsup appears to have figured out that fossil fuels have brought immense benefits to humanity -- something that seemed to have escaped the notice of the entire Obama administration:
But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?
Ultimately, Alsup finds that the whole subject matter is beyond the capabilities of a mere federal judge or jury to address:
The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.
Meanwhile, the New York City case is before a very tough-minded guy named John Keenan -- a Reagan appointee no less -- so I wouldn't be expecting a much different result there. Too bad that we may end up missing out on some entertainment value from this three-ring circus.
