Another Candidate For Stupidest Litigation In The Country

Last month I wrote a post on the "Stupidest Litigation In The Country," which I identified as the litigation brought in Oregon by a group of minor children seeking a nationwide injunction forcing the phase-out of all use of fossil fuels in the United States.  Admittedly it was a brash move on my part, picking this one case as the very stupidest out of many thousands without having actually reviewed all of the others.  But I did ask readers to ponder whether it was "even remotely possible that there could be any case even stupider."   

Unfortunately, shortly after that post I became aware of a group of cases filed by California municipalities in state courts out there, blaming the major oil companies (BP, Chevron, Exxon Mobil, ConocoPhillips, Royal Dutch Shell) for some collection of speculative future calamities supposedly related to "climate change."  Those lawsuits could definitely be candidates for the title of "stupidest," but I had no way to check because I don't have access to whatever filing system they may have.  Then, on January 9, New York City decided to pile on to this bandwagon by filing its own case against the same group of oil companies, this one brought in the federal court in New York.  In this case I have come up with a link to a copy of the Complaint that is not behind a pay wall.  So we can all now read this new complaint and form our own judgments.  Is this case a bona fide candidate for stupidest litigation in the country?  Yes!  

I should note at the outset that the lawyer at the New York City Law Department who signed the Complaint, one Susan Amron, is one of my former associates!  I taught her everything she knows -- not!!!  Also named as among plaintiff's counsel is ubiquitous environmental activist attorney Matthew Pawa.  (I also understand that Pawa is the eminence grise behind the California municipality lawsuits.)

In evaluating this new case, the first question you might ask is, what exactly are they trying to accomplish here?  In a civil litigation, the only things you can hope to get at the end are (1) money damages, or (2) an injunction of some sort.  If you read the Complaint, it certainly looks like money is the principal thing they are after.  ("[T]he City respectfully requests a judgment against all Defendants awarding the City: . . . 2. Compensatory damages in an amount according to proof, of the costs of actions the City is currently taking and needs to take to protect City infrastructure and property, and to protect the public health, safety, and property of its residents from the impacts of climate change.")  But then, if you have a skeptical mind, you might ask, if it's money they're after, why don't they just impose a tax on gasoline (and any other products made from oil) in an amount sufficient to generate the money they are looking for?  Oh, wait a minute, they already have that.  Well, they could double it!

If damages aren't the real goal, how about an injunction?  The Oregon children's lawsuit explicitly asks for an injunction doing away with all use of fossil fuels in the U.S.  How about demanding that, New York City, at least as to your own residents?  Don't worry, New Yorkers will never miss the light, heat, air conditioning, refrigeration, transportation, computers, etc., etc., etc.  You won't be surprised to learn that the City has stopped short of demanding that relief.  They do ask for an injunction, but only "to abate the public nuisance and trespass that would not be effective unless Defendants fail to pay the court-determined damages for the past and permanent injuries inflicted" (whatever that means).

In other words, this lawsuit makes no sense whatsoever on its own terms.  Another theory of what this lawsuit may be about was advanced by Exxon in the Petition it filed in Fort Worth, Texas state court on January 8, and which I reported on in this post on January 10.  Here is Exxon's theory:

A collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change. This conspiracy emerged out of frustration in New York, Massachusetts, and California with voters in other parts of the country and with the federal government for failing to adopt their preferred policies on climate change. But rather than focusing their efforts in the marketplace of ideas and adopting a strategy of persuasion, the members of this conspiracy chose to advance their political objectives by imposing unlawful burdens on perceived political opponents.      

It may be difficult for you to believe that your own government officials could engage in such a level of abuse of the legal process, but then, try to come up with any other explanation for what is going on here that makes any sense.

Anyway, suppose that is the explanation.  As abusive and improper as it may be, does it really qualify as "stupid"?  Maybe not by itself.  But then, look at what passes for the supposed scientific basis for what is said in this Complaint to be a claim for "nuisance" against these oil companies.  There's way too much to cover in a short blog post, but let me give you a couple of examples:

• From paragraph 40 of the Complaint: "According to the NPCC, the expert committee convened by the City to provide scientific advice, guidance, and projections on climate change and relied upon by the City in its sustainability and resiliency efforts, climate change is already affecting New York City. The average annual temperature in New York City has increased at a rate of 0.79°F per decade over the last 30 years."  0.79 deg F per decade!  Wow!  That sounds like a lot!  But wait a minute -- they don't cite any source, or mention that there have been tremendous downward adjustments to older temperatures, nowhere more dramatic than in New York City itself.  Are they even aware of the definitive 17-part Manhattan Contrarian series, The Greatest Scientific Fraud Of All Time?  If they had read Part XVI of that series (July 19, 2017), they would know that for the very prominent measuring site at Belvedere Castle in Central Park, the official temperature records for the period 1950 to 1999 have been "adjusted" downward by a uniform 6 deg F; and then the adjustments become smaller and smaller in the more recent years to create an artificial warming trend.  Oh, wait, divide the 6 deg F downward adjustment by the 6.8 decade period and you get just about exactly the 0.79 deg F per decade that they are claiming as "warming" and trying to blame on oil companies!
• There could not be any more discredited piece of work in climate science than the Michael Mann "hockey stick" of 1998.  They wouldn't really try to rely on that as proof of global warming, would they?  Absolutely!  There it is prominently featured in paragraph 36.  Hey, it's from "peer reviewed literature."  Is there any mention here that no one has been able to reproduce Mann's work without access to his data and code, which have never been produced in 20 years?  Any mention that Mann has refused multiple times to produce the data and code underlying this paleoclimate reconstruction, and currently is being held in contempt by a Canadian court for failing to produce same in defiance of a court order?  Any mention of the mathematical flaws in the methodology uncovered by Canadian auditors McIntyre and McKitrick? Any mention that the reconstruction relies for critical periods almost entirely on a couple of tree ring cores from trees that have been demonstrated not to reflect actual temperatures in recent years?  Of course not.  This is pseudoscience of the most transparent, and only intended for the most uninformed and gullible as its audience.

Do they mention that the world is in the process of building some 1600 new coal power plants to provide electricity to those who have previously not had it?  Do they mention that the emissions from those coal power plants will swamp any possible reductions in emissions from oil that might conceivably be achieved in our lifetimes?  Do they mention that New York State is in the process of closing down the nuclear power plant that supplies some 25% of the power to New York City, with nothing on the horizon other than fossil fuels that could possibly replace that source?  No, no and no.  Really, it's embarrassing.

Yes, definitely a strong candidate for the stupidest litigation in the country.