Nature promotes frivolous lawsuits

By Andy May

A Dutch joke*:

“The Judge asks an attorney pleading his case: ‘Am I ever to hear the truth?’

The attorney responds: ‘No, my Lord, only the evidence.’”

It is safe to say that no evidence exists that man-made climate change has harmed anyone. Further man-made climate or climate change has never been observed or measured. Climate-related and extreme-weather-related deaths, whether natural or man-made, have declined 93% since their peak in the 1920s and 1930s. Extreme weather events have declined and their impact on humans has declined even faster. Deaths due to climate change (man-made or natural) reached their lowest point in recorded history in 2019.

Climate models, that purport to estimate our collective effect on climate, have an uncertainty of ±1.5°C or more, according to the latest IPCC report (IPCC, 2021). They place the range of the effect at 2°C to 5°C/2XCO₂. The abbreviation “°C/2XCO₂” means the warming due to doubling CO₂. Three degrees of error is so large that the models clearly have little predictive value, and the range has not narrowed since the 1979 Charney Report (Charney, et al., 1979). Ross McKitrick and John Christy have shown that all models seriously overestimate middle troposphere warming in the critical tropic region (McKitrick & Christy, 2018). One would think that would be the end of the story.

Imagine my surprise when I see a book review in Nature that tells me a court in The Netherlands ordered Royal Dutch Shell to reduce its greenhouse gas emissions on May 26^th by 45%, and to do so by 2030. The very next day, an Australian court found that the Minister of the Environment had a duty to protect Australian children from harm but declined to grant an injunction to halt the expansion of a supposedly threatening coal mine. The Minister did not contest the plaintiff’s case that there would be “foreseeable” future harm caused by greenhouse emissions from burning the extra coal. See the Court orders, page 148, for the details.

The article states that 1,850 climate change cases have been filed in courts around the world. Obviously, the alarmists are not happy with government legislatures’ and bureaucrat’s regulations and are trying to destroy the fossil fuel industry using judges as their weapon.

No harm has been suffered by anyone, a point made by the Australian judge, who wrote:

“In the circumstances, including that the harm in question is not imminent, I consider it is highly undesirable to pre-empt the Minister’s decision.” (Ruling, page 147)

The harm he refers to is the future modeled danger resulting from burning the coal to be mined. No one can tell us how much greenhouse gases affect the climate with adequate precision, even after thousands of scientists spent billions of dollars over 40 years trying. This is all well known. How the two judges ruled, and why, is illuminating. Paraphrasing Bergkamp slightly, we observe that the judges are assuming what should be proven (Bergkamp & Hanekamp, 2015).

The Netherlands
According to a Harvard Law School blog post, The case against Shell was brought by several NGOs (non-governmental organizations) and 17,000 individuals. The lead NGO was Milieudefensie. These plaintiffs allege Shell is obligated to “contribute to the prevention of dangerous climate change through [its] corporate policy.”

The court ruled that the NGOs had standing to sue because they related to the interests of current and future generations of Dutch residents. The individual plaintiffs were ruled inadmissible, as the class action lawsuits were thought to cover the necessary ground.

The court then ruled that Shell owed an “unwritten standard of care” under Dutch law to the residents. As a result, they were required to reduce the volume of CO₂ emissions 45%, relative to 2019, by 2030. The ruling applied to the entire value chain, that is to all Shell suppliers as well. Since government-owned utilities are common, this ruling would affect government entities around the world, as well as private Shell suppliers. In the U.S. and some other countries, electricity, natural gas and water are sometimes supplied by cities and states. These suppliers sell to local Shell affiliates, creating a potential conflict. The court ruled Shell’s current plans for reducing emissions are inadequate.

Shell’s statement that “urgent action is needed” to reduce carbon emissions was not helpful. They must realize, as most intelligent people do, that no evidence exists that human greenhouse emissions cause harm, although there is abundant evidence that they are beneficial. Why cater to a lie? Currently Shell has said they will appeal, but the ruling is in effect until the appeal is decided.

Australia
The Australian judge, The Honorable Mordecai Bromberg, was slightly more reasonable and judicial than the Dutch judge. On May 27, 2021, the Federal Court of Australia ruled that the Minister of the Environment was obligated to protect Australian children. The plaintiffs wanted the judge to order the Minister (Sussan Ley) to deny a permit to extend a coal mine owned by Vickery Coal Ltd. The judge denied the injunction.

It seems possible this suit was of the “sue and settle” type. In these cases, the Ministry requests that someone sue them, so they are not forced to make a decision they don’t want to make. They ministry or department does not contest the lawsuit, causing them to lose. This forces the judge to make the uncomfortable decision for them. Then they just hold up their hands and say the judge made them do it. These suits became popular in the United States during the Obama administration. By colluding with outside groups and the courts, the Obama administration bypassed Congress, and enacted laws through regulations mandated by the courts. The EPA halted this practice during the Trump administration, but it has been reinstated under Biden.

The court ruling contains examples of deceptive statements the Judge mentions (pages 8-9):

1. The plaintiffs allege that rising temperatures, due to climate change, will cause increases in bushfires, extreme weather, drought, and other climate induced natural disasters.
2. The plaintiffs allege that the relationship between increased human emissions of CO₂ and increased temperatures is linear.
3. The plaintiffs allege that continuing human emissions will result in Earth system” changes that will lead to “tipping cascades” that will “propel” the planet into 4°C of warming and it will become a dangerous “Hothouse Earth.”
4. The plaintiffs proclaim that the best outcome is warming of 2°C above preindustrial (Little Ice Age) conditions.

These four dubious points, and many more were not contested by the Ministry. Item 1 is pseudoscientific nonsense, claiming all extreme weather is proof of man-made climate change is akin to a Marxist claiming all news events prove Karl Marx was correct, or Freud claiming every patient proves he was correct (Popper, 1962, p. 35). Item 2 appears to be from a paper by H. Damon Matthews, and others, which claims that global temperatures are linear with the quantity of human emissions (Matthews, Gillett, Stott, & Zickfeld, 2009). Comparing the observations to the temperature result produces 5% to 95% error bars so large as to make the conclusions suspect. Matthew’s conclusions are mostly based on models.

Regarding items 3 and 4, it is interesting that, while Professor William Steffen, the main witness for the plaintiffs, believes that four degrees of warming above the levels of the Little Ice Age—excuse me—the preindustrial period, will cause the Earth to become a dangerous hothouse. He even believes the risk is significant at 2°C of warming (Steffen, et al., 2018). Steffen mostly relies upon the IPCC 1.5-degree report in his testimony (IPCC, 2018). Four degrees of global warming would bring Earth’s surface to an average of about 18.5°C, which is a little less than the average Phanerozoic surface temperature, according to Scott Wing and Brian Huber of the Smithsonian Institution, as shown in Figure 1.

Figure 1. Smithsonian Phanerozoic (540 million years ago to today) temperature reconstruction by Scott Wing and Brian Huber. After: Smithsonian.

The Smithsonian record plots geologically inferred temperatures from the rock and fossil record. Wing and Huber rely a lot on temperature sensitive isotopes in their reconstruction. Christopher Scotese has also reconstructed Phanerozoic temperatures, his reconstruction is like Figure 1 but has less extreme high and low temperatures. Scotese’s reconstruction uses diagnostic rock types to identify large year-around glaciers in ancient polar regions. When year-around glaciers exist on either pole, the Earth is in Icehouse conditions, like today. Equatorial temperatures vary much less than polar temperatures, so by estimating polar conditions from the geological record, the equator-to-pole gradient and global average temperature can be estimated.

Scotese is also collaborating with Wing and Huber on their reconstruction. Both reconstructions are very low resolution (~10 million years or more between most points) and show an average Phanerozoic temperature of about 20°C, over 5°C warmer than today. According to Scotese’s work, hothouse conditions start at a global average temperature of 24°C (75°F), almost 10°C (18°F) warmer than today. Judge Bromberg explicitly refers to four degrees of warming as “hothouse Earth” on page 19 of his judgement, far less warming than Scotese requires.

It is difficult to be concerned about the IPCC and Professor Steffen’s projected four degrees of warming, when that will not even raise global temperatures to their average for the past 540 million years. Life thrived during the Paleocene-Eocene Thermal Maximum labeled in Figure 1, when global average temperatures exceeded 80°F (26°C). Plant and animal diversity increased, and the Great Mammalian Dispersal event occurred. This was when mammals spread widely and primates evolved (McInerney & Wing, 2011).

William Nordhaus received the Nobel Prize in Economics in 2018 for his work on the economics of climate change (The Nobel Prize, 2018). In his Nobel Lecture he questions the idea that humans should try to reduce GHG emissions enough to keep temperatures below two degrees above the Little Ice Age or the preindustrial period. Doing so, he calculates, will cost $30 trillion more than is saved. To limit warming to 1.5 degrees would cost $50 trillion. The total world GDP in 2020 was only $85 trillion. His optimum economic path is to allow four degrees of global warming (Nordhaus, 2018). Thus, Steffan’s claims are easily contested, but the Ministry did nothing.

Discussion
As stated in the beginning of the post, there is no evidence that anyone has been harmed by human greenhouse gas emissions. There is also no evidence that human greenhouse emissions have or will cause dangerous changes to our climate. I’m not a lawyer, but normally someone must have suffered some harm and must provide evidence that the person or group they are suing caused the harm for a lawsuit to be accepted in court.

Australia’s Bromberg alludes to this principle when he writes about two example cases where preventative injunctions were granted by a judge:

“Neither case involved an apprehended breach of a duty of care and in each case, harm had already been occasioned at the time the injunction was granted.” (Court orders, page 147).

The Judge ruled that the Australian Ministry should take the safety of the children into account when ruling on the coal mine extension project. This is OK, but the troubling thing about the trial was the Ministry did not contest any of the speculative testimony from Professor Steffen. The Ministry probably did not contest them because they wanted to lose, but when that happens this sort of nonsense gets imbedded in the judicial record and can be used again.

In the Dutch case, Shell clearly did not want to lose the lawsuit. So, why say urgent action is needed? Shell is not only obligated to obey the court’s order, but also has a fiduciary obligation to their shareholders, employees, and partners. The court order requires Shell to take money and resources from these latter groups and spend it on reducing GHG emissions. This is not something they can do for long. The result may cause the company to move from The Netherlands to another country and shut down all Dutch facilities.

There has been a dangerous trend in politically correct statements about the dangers of man-made climate change coming from oil and gas companies in recent years. This seems suicidal. Why ignore the facts and not contest perfectly contestable assertions? Everything Professor Steffen and the IPCC have said about the dangers of man-made climate change, even if not demonstrably untrue, are very vulnerable to attack. Every time a company does not contest this nonsense the collective court database grows.

Climate change activists have initiated these 1,850 lawsuits because they are losing the scientific and public debates on man-made climate change. A majority of the global population do not think climate change is a serious threat according to a recent Gallup poll. According to Rasmussen, fewer than a third of Americans agree with President Biden’s assertion that global warming is America’s greatest threat.

They are also losing in legislatures and government executive branches, firm regulations and taxes on carbon inevitably fail to pass. Finally, their “intergovernmental” Paris, Kyoto and Rio de Janeiro UNFCCC agreements have all failed to make a difference (Nordhaus, 2018, pp. 459-461). The IPCC have issued six major IPCC reports, uncounted other reports, and yet the uncertainty in their estimate of the impact of CO₂ on climate is still three degrees. Billions of dollars wasted, and we still don’t have a clue as to the impact of CO₂ on climate. They need to do the hard scientific work to uncover solid evidence that CO₂ matters and stop wasting all our time and money in court.

Science and the Courts
Bergkamp does not believe that scientific debates should be adjudicated, I agree. The courts are not the place to decide which of the various scientific climate change hypotheses are correct. The scientific community will decide when a theory is proposed that is so conclusive and so reproducible that no one questions it. A “consensus” is not enough, in science the acceptance must be universal.

Climate science has become political and the side with the least scientific evidence has dragged the debate into court to force the skeptics to defend themselves, even though they hold the traditional position that nature controls Earth’s climate. Even if the alarmists lose, as Michael Mann did or as Mathew Pawa and colleagues did in their bid to sue Exxon-Mobil, they can damage the defendant’s public reputation and force them to pay significant legal costs.

The suit by Mathew Pawa, Naomi Oreskes, the Union of Concerned Scientists, and Tom Steyer’s NextGen is too complicated to explain here, but the court’s findings of fact can be downloaded as well as ExxonMobil’s submission. A summary of the humiliation of ExxonMobil’s tormentors can be seen here.

The key difference between the ExxonMobil case and the Shell case is that ExxonMobil fought back and won. Scientifically, the climate change alarmist’s case is extraordinarily weak. But, since Shell and the Australian Minister did not challenge them, the weak case becomes stronger and can be cited in future cases. Always fight back, the repercussions can be devastating if you don’t. Witness the Shell-Milieudefensie case discussed above or the U.S. Supreme Court CO₂ endangerment decision in 2009.

Bergkamp has written:

“The veil of human rights cannot conceal the climate movement’s agenda to set democracy aside. The rule of law, not of lawyers, must be restored, and the ECtHR [European Court of Human Rights] needs to become an apolitical, law-abiding arbitrator of real human rights disputes, instead of a judge of policy disputes dressed up as human rights issues.” (Bergkamp & Brouwer, 2021)

When courts, and lawyers, step beyond interpreting the law and begin to make it, they enter dangerous territory. Concluding that a fact is a fact because a consensus voted for it is absurd. A consensus of opinions is not a fact, it is a political consensus. A scientific fact is established by an experiment that can be repeated or by making repeated quantitative predictions that come true (Popper, 1962).

*I first read the joke at the top of the post in an interesting article on the Dutch “Urgenda” case where a court ordered the Dutch government to beef up their fight against climate change. The article was by Dr. Lucas Bergkamp, a Dutch lawyer with Hunton and Williams, and Emeritus Professor of Environmental Liability Law at Erasmus University, Rotterdam.

Dr. Bergkamp has been very helpful in preparing this essay. (Bergkamp & Hanekamp, 2015).

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