by Judith Curry

For the sake of argument, let’s accept the IPCC conclusions regarding attribution of global warming, and their 21st century projections. So, exactly who in the U.S. bears the blame for current and future damages?

This is not an academic question. There are two landmark lawsuits that are gearing up, that ‘blame’ different entities.

Juliana versus U.S. Climate Lawsuit

Youth filed their constitutional climate lawsuit, called Juliana v. U.S., against the U.S. government in the U.S. District Court for the District of Oregon in 2015. Other plaintiffs in the case include world-renowned climate scientist Dr. James E. Hansen, serving as guardian for future generations and his granddaughter, and Earth Guardians, as an organizational plaintiff.

Their complaint asserts that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.

The fossil fuel industry initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed. On April 8, 2016, U.S. Magistrate Judge Thomas Coffin recommended the denial of their motions to dismiss, and U.S. District Court Judge Ann Aiken upheld Judge Coffin’s recommendation, with the issuance of an historic November 10, 2016 opinion and order that denied the motions. When the defendants sought an interlocutory appeal of that order, Judge Aiken denied the Trump administration’s motions on June 8, 2017.

On June 28, 2017, Judge Coffin issued an order releasing the fossil fuel industry defendants from the case, and setting a trial date for February 5, 2018 before Judge Aiken at the U.S. District Court of Oregon in Eugene. Youth plaintiffs, now age 10 to 21, and their attorneys are now preparing for trial!

Co-defendant Jim Hansen and his granddaughter just published the following essay OK US government — see you in court. Excerpts:

We are a 76-year-old grandfather and his oldest grandchild, who just graduated from high school in Pennsylvania. We are among 22 plaintiffs in a lawsuit filed by Our Children’s Trust on behalf of young people and future generations against the federal government. The suit willl show that the government, by authorizing and subsidizing production, transport, and burning of fossil fuels, is substantially responsible for growing climate disruptions that could lead to irreparable harm to young people. These federal actions, we assert, violate young people’s constitutional rights to life, liberty, property, and equal protection of the law. The reality and intergenerational nature of human-made climate change are undeniable. It takes decades and centuries for the ocean to warm and ice sheets to melt in response to changes of atmospheric composition. Benefits of burning fossil fuels occur today, but the principal climate effects will be felt by young people and their offspring. If high fossil fuel emissions continue, eventual effects include loss of coastal cities on time scales as short as 50 to 150 years. Regional climate extremes are already increasing. Growing numbers of climate refugees are a harbinger of the future, if we let low latitudes become too hot for outdoor activity.

Civil rights provide a relevant example. The Supreme Court ruled in 1954, in Brown v. Board of Education, that segregation was unconstitutional. Yet the government dithered. Only with public outrage in the 1960s did the civil rights war begin to be won. A similar delay in the climate case would be deadly. Continued high emissions for decades will lock in a warmer ocean, likely pushing the system beyond a point of no return, as the warmer ocean melts the ice shelves around Antarctica and Greenland. Loss of coastal cities would become likely. Other climate disruptions would be magnified. The fundamental fact is that as long as fossil fuels are cheap, as long as they are not required to pay their costs to society, somebody will burn them. The United States alone has the leverage to address the global issue, but the court cannot order that.

Why are we confident of winning our lawsuit, which surely would need to survive scrutiny by a conservative Supreme Court? Our case is based on the rock-solid foundation of our Constitution. Thomas Jefferson, in correspondence with James Madison in 1789 about the proposed Bill of Rights, wrote, “The question whether one generation of men has a right to bind another . . . is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. . . . I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living.’ ” Jefferson was saying that the present generation can enjoy the fruits of the land, but with an obligation to leave comparable conditions for the next generation. A reasonably stable seashore, our nation’s Founders would agree, is an asset that should not be stolen from young people. Marin County vs Oil Companies Marin County, California, had filed a lawsuit against major petroleum companies [link]. The lawsuit is summarized by mercury news:

Two Bay Area counties sued 37 oil, gas and coal companies Monday asserting the companies knew their fossil fuel products would cause sea level rise and coastal flooding but failed to reduce their greenhouse gas pollution.

The lawsuit was part of a coordinated litigation attack by Marin, San Mateo County and the city of Imperial Beach.

The lawsuit, filed in Marin County Superior Court, alleges that “major corporate members of the fossil fuel industry, have known for nearly a half century that unrestricted production and use of their fossil fuel products create greenhouse gas pollution that warms the planet and changes our climate.”

The suit goes on to say that even though the fossil fuel companies knew there was a narrow window to take action before consequences would be irreversible, they engaged in a “coordinated, multi-front effort” to “discredit the growing body of publicly available scientific evidence and persistently create doubt.”

The suit asserts that the fossil fuel companies “have promoted and profited from a massive increase in the extraction and consumption of oil, coal and natural gas, which has in turn caused an enormous, foreseeable, and avoidable increase in global greenhouse gas pollution.”

And the suit states that this greenhouse gas pollution has “substantially contributed to a wide-range of dire climate-related effects including global warming, rising atmospheric and ocean temperatures, ocean acidification, melting polar ice caps and glaciers, more extreme and volatile weather and sea level rise.”

According to an assessment of Marin’s vulnerability to sea level rise completed in June, more than 12,000 homes, businesses and institutions could be at risk from tides and surge flooding by the year 2100.

Sea level rise

Sea level rise is the central issue for both cases. Jim Hansen states:

A reasonably stable seashore, our nation’s Founders would agree, is an asset that should not be stolen from young people.

Well, good luck with that one. Sea level has been overall rising since the last ice age, with some ups and downs. Sea level has been rising for the past 200 years. The rate of sea level rise during the period ~1925-1960 is as large as the rate of sea level rise the past few decades. Human emissions of CO2 became large after 1950; humans don’t seem to be to blame for the early 20th century sea level rise, nor for the sea level rise in the 19th and late 18th centuries. Humans are not going to stop sea level rise on the time scale of a few centuries by ceasing emissions of CO2. See these previous posts:

We need to learn to live with continuing and possibly accelerating sea level rise. The solutions lie in land use policy and engineering/technology.

JC reflections

These two cases promise to be very interesting, not to mention profoundly important in determining how the political debate surrounding climate and energy policy plays out in the U.S.

I find the two cases to be interesting when considered together, regarding who is getting blamed. The California case blames the petroleum companies. They somehow knew better, and apparently should have stopped producing fossil fuels. The Juliana case blames the federal government: the U.S. government that declined to sign on to the Kyoto protocol, pass a carbon tax and trade bill, and a Senate that declined to vote favorably on the Paris agreement.

Never mind the consumers and businesses dependent on fossil fuels. The U.S. public that squeals with outrage over the prospect of a few pennies added to the gasoline tax. And not to mention the rest of the world with rapidly growing populations with rapidly growing appetites for energy and grid electricity.

I really ‘get’ the grandchildren argument — I have a 7 year old grandaughter that I would do just about anything for. While we’re at it, surely its not fair that our grandchildren should suffer through volcanic eruptions, hurricanes etc.

So what should we as a society be doing for the younger generation? I hope that they will inherit a free and prosperous society, that provides many opportunities for the pursuit of happiness and a safe, healthy, prosperous life:

a prosperous economy with a 21st century infrastructure and adequate food, water and energy

opportunities for personal and economic development

preserve the beauty and wonders of nature

a peaceful world with rising human development and quality of life

Personally, I would not put a stable coastline at the top of the list, and I wouldn’t even put it on the list if it comes at the expense of any of the above.

Both of these cases will need to confront the following arguments:

The bottom line is that there are no easy solutions and no obvious scapegoat to blame.

These cases hinge on future damages, not on damages that have already occurred. This will be an interesting legal test of the precautionary principle: suing someone for damages that a model says will occur far in the future.

It looks like Juliana goes to trial in early 2018; not sure about the schedule for California. It will be very interesting to see how these two cases play out.