Local weather Lawfare • Watts Up With That?

Rud Istvan

Charles sent me some recent information from a Harvard climate lawfare conference and asked me to comment.

I have expanded it to a more general discussion.

Lawfare has come into the general lexicon since Trump came down the elevator. It is the idea of weaponizing the legal system against opponents. There may or may not be any substance to the lawfare; often just the (expensive) process is the intended punishment. The Georgia felony indictment of Trump and 18 ‘coconspirators’ concerning the obviously questionable 2020 Georgia election result is the most recent example.

Climate lawfare has come in two distinct, so far failed tranches; the Harvard Law School conference (a summary is available at corpgov.law.harvard.edu) newly proposes a third. Plus there is the newly decided Montana children’s case that is an outlier peculiar to Montana.

Tranche 1 was based on Harvard professor Naomi Oreskes 2010 book Merchants of Doubt. Its premise was that fossil fuel companies ‘knew’ about the climate crisis they were creating, just like Big Tobacco knew cigarettes caused cancer and covered it up for decades. In reality, there is no comparison, because it was medically shown in the UK in the 1950’s that smoking caused lung cancer.

Despite the IPCC and now AR6, no one has ever shown that CO2 is causing a climate crisis. And every ‘climate disaster’ supposed to have happened by now hasn’t. Sea level rise did not accelerate as Hansen predicted in 1988. Arctic summer sea ice did not disappear by the mid 2010’s as Wadhams predicted. Despite USNPS signage to the contrary (disappeared the winter of 2020 while the park was closed), Glacier National Park still has glaciers. Despite abundant evidence to the contrary, alarmists met with Oreskes the summer of 2012 at Scripps to map out a lawfare campaign. This is their conference summary report.

But it was several years before Massachusetts AG Mura Healy finally filed the first “Exxon knew” lawsuit. NY, NJ, and several other states followed.

To date, all are mired in procedural disputes about whether the cases should be consolidated into one federal case, or left in multiple state courts. SCOTUS recently declined to hear Exxon’s federal consolidation appeal, so the several suits will remain in state courts.

This will be expensive for Exxon, but futile for the plaintiffs. Because Exxon has more than adequately demonstrated that it ‘didn’t know’.

Tranche 2 was 30+ so far failed attempts starting in 2018 to hold various fossil fuel companies liable for climate damages under the ‘public nuisance’ doctrine.

Without being over lawyerly, a public nuisance suit arises when the annoyed sues the nuisance for actual damages, or injunctive relief if there aren’t any actual damages but they are ‘imminently plausible’. None of these have gone anywhere. For example, Delaware v. BP America filed in 2020 faces a BP motion to dismiss for failure to state a claim.

Now some EU law professors have proposed (at Harvard Law) a third tranche based on the doctrine of unjust enrichment. The HLS idea is to sue for ‘unjust climate enrichment’.

This doctrine lives in a grey area between torts (public nuisance is technically a tort) and contract law. It is frequently referred to as ‘quasi contractual obligations’. It usually arises from a lack of lawyering, so proposing it’s use as lawfare is certainly novel. The doctrine has three elements:

  1. A benefit received by a defendant.
  2. At plaintiff’s expense.
  3. Where it would unjust to retain the benefit without compensation.

There are two common types of state court cases.

One is where a written contract should have been in place but wasn’t. For example, a painter verbally agrees to paint a house for a few thousand dollars. Under the Uniform Commercial Code, the value is such that a written contract should be in place. Verbal isn’t enforceable. The painter buys the paint and paints the house. Then the homeowner refuses to pay because there was only a verbal agreement. The homeowner is unjustly enriched.

The other is where a couple lives together and commingles finances. Then there is a ‘divorce’. One sues the other (usually the poorer sues the richer) claiming unjustly enriched by the relationship. Messy. There are actually lawyers (hopefully not from Harvard Law) who advertise specializing in this mess.

So now junior EU law professors are proposing suits based on ‘unjust climate enrichment’. Their legal reasoning is at best sketchy. They say climate stability, like clean air and water, has long been recognized as public property. (This is NOT true. In the US the Clean Air Act and the Clean Water Act established those public rights by legislation in the early 1970’s. There is as yet no Climate Stability Act.) Then they argue climate polluters (carbon pollution, by which is really meant CO2) are making enormous profits off the asserted climate crisis, which comprises ‘unjust climate enrichment’ and new lawfare grounds.

This idea is goofier than Merchants of Doubt and public nuisance. It doesn’t logically work at all. Exxon makes a legal profit selling the public gasoline. Ford makes a legal profit selling the public ICE vehicles. The PUBLIC is the one unjustly enriched by enjoying the enabled driving convenience!

Finally, since it is current and topical, we have the very recent outlier ruling in favor of Montana children who sued the state for enabling fossil fuel extraction. Montana has very little natural gas extraction, and only a modest amount of crude oil from the Williston Basin. But it is the US #1 producer of steam coal from the Powder River Basin.

The state court ruling is based on the Montana state constitution (MSC), and almost certainly does not apply elsewhere. The MSC A2 (inalienable rights) §3 specifically includes “the right to a clean and healthful environment”. MSC A9§1 provides “The state SHALL maintain and improve a clean and healthful environment for present and future generations.”

I don’t think the outlier ruling means much in terms of future Montana action. Ironically, despite A9§1, Libby Montana is home to the US largest asbestos contaminated Superfund site thanks to decades of mining asbestos contaminated vermiculite And Montana has done nothing about it. And a Libby clinic was just fined $5 million for submitting false asbestos injury claims.

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