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May 9, 2018

Climate Litigation: Grasping at Tort Straws

May 9, 2018
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Billions of consumers purchase and use fossil fuels for safe, comfortable, prosperous living each day. Presumably, it is all voluntary and legal.

Countless entities and workers provide oil, natural gas, coal, and electricity to themselves and everyone else. Energy, the ubiquitous master resource, is a from-us-to-us activity.

Strange, then, that climate-change alarmists/activists are singling out certain energy companies on a nuisance claim for the latter’s alleged contribution to global climate change.

In California, for example, the cities of San Francisco and Oakland have sued BP, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell. Other suits are underway as well.

Malthusian Scares, Government Nuisances

History and context matter greatly in these current legal proceedings. In the last half-century, an intellectual (“Malthusian”) movement has direly warned about the sustainability of fossil-fuel-enabled industrialization and material progress. In the 1960s, the fear was food famines from the “population bomb.” In the 1970s, it was the exhaustion of minerals, particularly oil and gas. As the scientific orthodoxy, Peak Oil would remain the “consensus” until recent times.

There was also the global cooling scare in the 1970s, with high-profile scientists (including Obama’s science advisor John Holdren) worried about sulfur dioxide emissions (from coal plants primarily). The mainstream media played up the new Ice Age scare.

But since the late 1980s, the predominant fear has been global warming, or, more precisely, the enhanced greenhouse effect from the production and combustion of natural gas, coal, and oil. “We’ve got to ride this global warming issue,” stated Timothy Wirth, a former US senator and climate activist. “Even if the theory of global warming is wrong, we will be doing the right thing in terms of economic and environmental policy.”

These scares seemed to have escaped ideological litigation, but they inspired government policies to alter free energy markets, enough to create the crony industries of wind power, (on-grid) solar power, and electric vehicles.

But affordable, plentiful, reliable, taxpayer-neutral mineral energies still manage to win the day. Fossil fuels enjoy an 81-percent market share in the U.S. and globally, an amount that would be higher except for government largesse.

Each of the old Malthusian scares, needless to say, has been debunked. Mass starvation did not occur. Peak Oil concerns have been refuted by new-generation technology. Global cooling turned out to be a transient (but illustrative) concern.

Climate Lawsuits: A Last Resort

That leaves the (fading) scare of problematic manmade global warming. Sensitivity estimates are coming down. The temperature “pause” has left climate models significantly overpredicting real-world warming. And high-sensitivity (“fat tail”) estimates are being discounted.

Meanwhile, climate economists debate the pros and cons of a moderately warmer and wetter world—and the pros of the CO2 fertilization effect responsible for greening planet earth.

How strange it is, then, that high-profile lawsuits have been filed against energy companies (and, indirectly, all of their employees and stockholders) for meeting the production, transportation, refining, and marketing needs of a global marketplace.

It is consumers (including every plaintiff of the above suits) who have used fossil fuels incessantly from birth. It is governments who have debated and enacted energy policies after debate. So, who exactly is responsible for the world energy market as we know it?

It is not as if the science of climate change was and is settled. At the same time that some energy companies were investigating the role of carbon dioxide (CO2) emissions, in fact, scientists were debating the same thing—inconclusively, as it turned out.

Remember when James Hansen launched the Great Global Warming debate in the hot, dry summer of 1988? Reporting in Science magazine, the flagship publication of the American Association for the Advancement of Science (AAAS), Richard Kerr duly noted that Hansen was not in sync with his scientific colleagues.

“What really bothers them is not that they believe Hansen is demonstrably wrong,” wrote Kerr, “but that he fails to hedge his conclusions with the appropriate qualifiers that reflect the imprecise science of climate modeling.”

And thirty years later, there is vigorous debate over the magnitude of both natural and anthropogenic factors, and how opposite effects of the latter (SO2 cooling versus CO2 warming) net out.

The good news is that global lukewarming has become a school of thought, a truth-is-in-the-middle answer, one that holds great promise to defuse the whole issue.

Judgment Day

Climate activists excitedly report that climate litigation “has the potential to reshape the way the world thinks about energy production and the consequences of global warming.” But probably not.

Global cooling? Global warming? Global lukewarming? The CO2 fertilization effect. The risks of climate change policy. What’s a judge and jury to think about causality, much less an alleged nuisance and remedy? Cooler heads and humility are called for in place of alarmism and calls for open-ended coercive public policies.

Climate lawsuits are really complaints about natural life, where choices are made by consenting adults in the marketplace and by governments in the political marketplace. The complainants seem to want to live an alternative universe—and one where here-and-now human progress and prosperity are all but forgotten.

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