More climate suing stuff

Via a somewhat weird Twatter post, comes news of yet another climate-suing case. Are there so many that I'm losing track? It is hard to know. Why isn't Brian on top of all this? Trying to work out what is going on I find Big Oil Climate Change Suits Stay in Federal Court, which tells me that U.S. District Judge William Alsup found the cities of Oakland and San Francisco cannot sue oil companies for public nuisance under state law because the alleged misconduct occurred on a global scale and therefore falls under the federal court’s jurisdiction. That appears to start further back: San Francisco, Oakland Blame Oil Giants for Rising Sea Levels, from 2017, says Oakland and San Francisco sued five major oil companies on Tuesday, claiming they should cover the costs of sea walls and other projects needed to protect the cities from the consequences of climate change. “These fossil fuel companies profited handsomely for decades... and so on. The usual stuff. I've already explained why I think the fundamental point here is wrong, although in a different context and perhaps not clearly, so I'll do it again: the people getting most of the benefit out of fossil fuels are the consumers. The benefits they get are warm homes in winter and cool ones in summer, and electricity, and flights to distant places, and so on. For the same reason, fossil fuel companies don't have enough to pay out the expected liabilities, should they be found liable; or so I'd guess.

But that's not the end of the legal fun-n-games: The oil companies say they can’t be sued for problems caused by fossil fuel emissions because any such claims are preempted by the federal Clean Air Act, which regulates emissions. The cities counter that the Clean Air Act only preempts federal common law claims, not state law claims. By concluding that the cities cannot sue oil companies for public nuisance under state law, Alsup undercut some of the cities’ key legal arguments. But the cities also advanced a novel theory of liability that could enable them to sidestep the Clean Air Act preemption problem. Oakland and San Francisco seek to hold the companies liable for public relations campaigns aimed at discrediting scientific research on global warming. The cities also want the companies held liable for selling fossil fuels, rather than emitting pollutants.

I think that holding someone liable for selling fossil fuels, when you yourself not only permit them to do so but tax them for doing so, and you personally use their products, is implausible. The idea of suing them for disinformation is possible, but, meh. It turns out that part of this was decided some time ago; American Electric Power Co. v. Connecticut says the [Supreme] Court, in an 8–0 decision, held that corporations cannot be sued for greenhouse gas emissions (GHGs) under federal common law, primarily because the Clean Air Act (CAA) delegates the management of carbon dioxide and other GHG emissions to the Environmental Protection Agency (EPA). Aha! But perhaps the Clean Air Act only regulates the companies that burn fossil-fuels, not the companies that sell them. That, too, sounds unlikely.

But the fun bit is the "tutorial". It appears that the judge has asked the various participants to come prepared to answer some questions. Some of them are quite science-y and very easy and probably both sides will be able to answer with a straight face, such as "What is the molecular difference by which CO2 absorbs infrared radiation but oxygen and nitrogen do not?" (Andrew Dessler's answer to this is weak). Some are rather weird and I can't really understand why they are being asked, such as "Does CO2 in the atmosphere reflect any sunlight back into space such that the reflected sunlight never penetrates the atmosphere in the first place?". Point 5 is also odd, and appears to be global warming is not from waste heat. But, maybe he's trying to get them to do sufficiently quantitative calculations to show that, which would require them to actually agree on the radiative forcing from CO2. Aha! Perhaps it is a trap. It will be interesting to see the outcome; I suspect the main thing to ensure will be that the discussion doesn't get bogged down. This has echoes of U.S. fossil fuel groups pull out of climate change court case, which provided the glorious "But discord arose among them after a judge ordered them to submit a joint filing stating their views on climate science". In this instance, “The court is forcing these companies to go on the record about their understanding of climate science, which they have desperately tried to avoid doing,” said Marco Simmons. And he may well be right.


* Alsup asks for answers at RC. Although vitiated by it's "somewhat uniquely" - Gavin has gone over to the dark side - it does notice that some of the questions are a little odd, but provides good answers, should you want them.
* Schwarzenegger jumps on the bandwaggon too.
* Eli can do the easy ones.
San Francisco, Oakland Climate Cases to Stay in Federal Court, Judge Rules.


Hank Roberts said...

Alsup is a very smart man with a reputation for insisting on understanding the facts and science, not just the legal rhetorical arguments.
I really hope whoever represents the climate change information side does it well.

Millicent said...

The concern I have is that the legal liabilities associated with funding/organising the campaign to hinder attempts to prevent climate catastrophe are extraordinarily high. They would reduce billionaires to paupers. That has resulted in American oligarchs contemplating the destruction of democracy in order to protect themselves.

Hank Roberts said...

Chuckle. I wonder if it's possible to sit in and listen to the tutorial in the courtroom.
I hope someone live-blogs it.
The transcript will be fun reading.


angech said...

Some are rather weird and I can't really understand why they are being asked, such as "Does CO2 in the atmosphere reflect any sunlight back into space such that the reflected sunlight never penetrates the atmosphere in the first place?".
A misunderstanding about reflectance and absorbance perhaps.
One could say that the IR from the sun is totally absorbed well before it hits the ground.
Seeing that the IR from the earth is totally absorbed in the first few meters [?].
Hence most of the atmospheric heating is the IR from the earth trying to make it out through successive layers of CO2 going upwards.
At least half of the absorbed IR from the sun should make it back out to space without being absorbed by another CO2 particle.
Perhaps the concept of it never reaching the earth surface in the first place means it it fits or is regarded as being reflected rather than absorbed.
That is the way it seems to be treated in this earth atmosphere energy budgets.
In which case it modifies the energy burden of the atmosphere somewhat.
Even if it is technically not reflection.

Silly Dreamer said...

I seem to remember the case of a car manufacturer who sold a perfectly legal motor vehicle that had a tendency to burst into flames in a rear end collision. They were sued because their car burst into flames, but the magnitude of damages was huge because they knew about it and did a quick calculation that showed it was cheaper to be sued than it was to rectify the problem that was killing people.

Where the oil companies might be in trouble is that they may have said some things that they knew to be fibs when lobbying against the sort of things that might actually reduce emissions.

Lastly this is America, and the idea of getting rich quick by suing someone is very popular. Are the oil companies busy making sure that any legal liability rests with some shell company (so to speak) with no assets?

William Connolley said...

I fear you have substantially misunderstood the Ford Pinto case: Fuel system fires, recalls, and litigation.

Russell Seitz said...

Hank, the courtroom transcript can't be more fun than what was said < a> about the Red Team exercise behind closed doors at the White House in December