Lethal Heating: 06/13/17

13/06/2017

White House Effort To Stop Youth Climate Lawsuit Is 'Drastic And Extraordinary'

Mashable - Maria Gallucci

Demonstrators protest President Donald Trump's June 1 decision to exit the Paris Climate Agreement. Image: Scott Olson/Getty Images

The Trump administration is ramping up efforts to quash a climate change lawsuit brought by 21 young people.
Trump's legal team on Friday took an unusual step that shows just how determined the Justice Department is to keep Juliana v. United States from going to trial.
Lawyers filed a "writ of mandamus" petition with the Ninth Circuit Court of Appeals to review a federal judge's decision from November, which denied the government's motion to dismiss the precedent-setting lawsuit.

A mandamus is considered a "drastic and extraordinary" remedy reserved for "really extraordinary causes," Justice Anthony Kennedy wrote in the Supreme Court's 2004 majority opinion Cheney v. U.S. The administration essentially wants to leapfrog over a lower court in hopes of finding a more favorable ruling in a higher court.

Steam and exhaust rise from a power station in Germany. Image: Lukas Schulze/Getty Images

The youth lawsuit uses a novel legal approach that's also being tested in India, the Netherlands, and other countries around the world. Juliana v. United States relies on a version of the public trust doctrine, which holds that the government is responsible for preserving certain natural resources for public use. In this instance, the resource is the country's "life-sustaining climate system," including the "atmosphere, waters, oceans, and biosphere."
"The U.S. government is running from some of its youngest constituents, and all we're asking for is a plan to preserve our future," Victoria Barrett, an 18-year-old plaintiff from White Plains, New York, said in a statement provided by Our Children's Trust, the organization behind the lawsuit.
To understand why the Trump administration is going to such lengths, let's review some recent history.
In 2015, a group of citizens, now ages 9 to 21, filed a lawsuit accusing the federal government and energy companies of failing to rein in greenhouse gas emissions and curb fossil fuel use, despite mounting evidence on human-caused global warming. Plaintiffs claim that failure violates their "constitutional rights to life, liberty, and property.

While President Trump continues to reject science, these young people are fighting for the future of the planet. — Bernie Sanders

The Obama administration and industry groups filed motions to dismiss the lawsuit, and in April 2016, U.S. Magistrate Judge Thomas Coffin denied those motions. After reviewing Coffin's decision, U.S. District Court Judge Ann Aiken in Oregon also rejected the motions — setting a landmark precedent for climate issues as legal rights.
"I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society," Aiken said in her Nov. 10, 2016, opinion.
In February, after Trump was sworn in, the young plaintiffs filed a legal notice saying they were replacing Obama with Trump as the main defendant. Weeks later, the Trump administration and fossil fuel companies filed separate motions to the District Court seeking review of Aiken's decision to the Ninth Circuit.
That was an unexpected step; it's unusual for the government to try to appeal a case to a higher court before a lower court has ruled on the lawsuit. Trump's team also filed a motion to delay trial preparations until after its appeal is considered.
That brings us to the present.

Demonstrators protest Trump's June 1 decision to exit the Paris Climate Agreement. Image: Scott Olson/Getty Images

Last week, the Trump administration filed a notice to the District Court of Oregon, giving the court until June 9 to issue a decision on its appeal to the Ninth Circuit. If the court didn't issue a decision, defendants said they would seek a ruling directly from the Ninth Circuit.
On June 8, a day before the so-called deadline, Aiken denied the Trump administration's request, arguing that involving the higher appeals court at this point in the legal proceedings is "not warranted."
The decision was a big blow to Justice Department efforts to avoid going to trial. In response, the administration filed the rare "writ of mandamus" petition asking the Ninth Circuit to review Aiken's decision.

Trump at the White House, after announcing his decision to withdraw the U.S. from the Paris Climate Agreement. Image: Chip Somodevilla/Getty Images

The petition accuses the Oregon district court of committing "multiple and clear errors of law in refusing to dismiss an action that seeks wholesale changes in federal government policy based on utterly unprecedented legal theories."
Douglas Kysar, a law professor at Yale Law School who is not involved in the litigation, called the writ "offensive to Judge Aiken, the entire federal judiciary, and, indeed, to the rule of law itself."
"We should all question why the Trump administration's lawyers are willing to try such a trick rather than forthrightly defend the case," he said in a statement provided by Our Children's Trust.
The Ninth Circuit's decision will have important implications for the future of the lawsuit, and whether it goes to trial.
If the latter happens, we can already guess what Trump will tweet in response: "See you in court."

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Could Governments And Oil Companies Get Sued For Inaction On Climate Change?

Toronto Star - Alex Ballingall

Experts predict a coming era of "climate litigation," which is slowly emerging around the world and could soon come to Canada.

A girl walks along the shore as strong waves from Typhoon Hagupit hit the eastern Philippines in 2014. Climate change is being blamed for more extreme weather conditions. (Aaron Favila / AP FILE PHOTO)

OTTAWA—Eight hundred million dollars: that’s the potential price tag of the rising ocean in Vancouver. The city needs a new storm surge barrier to stop flooding if, according to municipal planners, sea levels climb by one metre this century due to climate change.
When discussing this scenario last fall, Vancouver Mayor Gregor Robertson said something that made Andrew Gage perk up and listen from his law office in Victoria. “There are direct costs to our taxpayers, but this is not an act of God,” Robertson reportedly said. “This is tied directly to human activity.”
Translation for Gage: Maybe it’s not just Tracy and Tom Taxpayer who should be on the hook for the new storm barrier. Maybe whoever is to blame for the rising ocean should fork over some cash.
That’s the idea, crudely put, behind an emerging front in the battle against climate change. And environmental groups and legal teams around the world are looking to the courtroom as their theatre of war.
The clunky term for it is “climate change litigation.” The legal field is in its infancy, but many feel it will inevitably make an impact, given the estimated costs of new infrastructure and economic disturbances expected from climate change — some of which are astronomical. A 2012 report from the Climate Vulnerable Forum, a group of international researchers, pins the global cost at $1.2 trillion in 2010, a figure they predict will quadruple by 2030.
In March, Policy Horizons Canada, a government department that predicts possible challenges for the public service in the coming 10 to 15 years, published a paper in April that warned of future court challenges over climate change. The paper outlines how large emitters like oil and gas companies, as well as governments, could be taken to court over alleged inaction on climate change.
In an emailed statement, a spokesperson for the federal environment ministry said the government wouldn’t speculate on hypothetical legal matters.
However, the statement said that a government roundtable predicted in 2011 that the economic impact of climate change on Canada could reach $5 billion per year by 2020 and between $21 billion and $43 billion per year by 2050.
“Environment and Climate Change Canada is taking serious climate action and developing policies that will benefit current and future generations,” it said.
Climate litigation is already happening in other parts of the world. One of the most frequently cited cases involved an environmental group, Urgenda, which took the Netherlands to court over its allegedly lacklustre emissions reduction targets. In June 2015, a Dutch court ruled in favour of Urgenda and found that the government must do more to curb emissions because of “its duty of care to protect and improve the living environment.”
In Germany, a Peruvian farmer is reportedly appealing a decision to reject his lawsuit against energy company RWE, which he accuses of increasing the threat of flooding from a glacial lake near his home in the Andes.
There is also a case in the Philippines involving Greenpeace, which is arguing that the world’s largest oil companies are violating the human rights of local people because of the rising incidences of extreme weather, such as the 2013 storm that killed thousands and caused billions of dollars in destruction.
In the United States, where a soon-to-be-published study provided to the Star says some 500 climate change litigation cases have been heard and rejected, a group of state attorneys general launched an investigation last year into major oil companies like Shell, Chevron and Exxon Mobil. The Policy Horizons paper calls the move “unprecedented” and describes how the investigation’s aim is to determine whether emitters deliberately ignored, and even tried to create doubt about, the causes and consequences of climate change.
Gage, who is a staff counsel with West Coast Environmental Law, believes it is only a matter of time before such a case lands in Canadian court.
“I have no doubt that this type of litigation is going to happen, because as the climate costs more and more, people are going to be demanding that someone pays for the costs,” Gage said in an interview this week.
Mark Carney, the former Bank of Canada governor who moved to the United Kingdom to take up the central banker job there, made a similar prediction in a 2015 speech to a London business crowd. He warned that “such claims could come decades in the future, but have the potential to hit carbon extractors and emitters — and, if they have liability coverage, their insurers — the hardest.”
Stepan Wood, the York Research Chair in Environmental Law and Justice and director of the Environmental Justice and Sustainability Clinic at Osgoode Hall, said the government would be wise to start thinking about this.
“I don’t think there’s anybody in the legal community who would bet against some kind of litigation being launched in Canada, against either government or emitters, in the near future,” he said.
“There’s a feeling that the ball is starting to roll.”
Wood outlined the various legal avenues for a prospective climate litigation case in this country.
One way is to issue a tort claim for damages against an emitter, such as an oil company. But Wood said the big hurdle in such cases is to prove causation: how can you convince a judge that the consequences of climate change that are costing you can be blamed on this particular emitter?
Wood said other options could include lawsuits under securities law, where company shareholders could sue, or possibly lawsuits for misinformation, similar to when tobacco companies were accused of ignoring evidence that cigarettes cause cancer.
Gage, meanwhile, argues one of the most likely cases to succeed could be if municipalities band together for a class-action lawsuit against large corporate emitters. The cities would argue they’re owed money to help pay for infrastructure, such as the storm barrier in Vancouver, Gage said.
One counterargument could be that everyone shares responsibility for climate change. It takes consumers to burn fossil fuels, and if the government has failed, you might say that the citizens bear responsibility for not forcing it to act.
Gage said that it’s time to have this debate because the era of climate litigation could be around the corner.
“The idea that we’re going to avoid this conversation forever is ludicrous. Of course we’re going to have this conversation, and it’s going to result in litigation,” he said.

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Thus Spake Mungo: Finkel Panders To ‘Technology Agnostic’ Turnbull

Echonetdaily - Mungo MacCallum

Malcolm Turnbull likes to describe himself as a technology agnostic.
As with many of his other utterances, this is not to be taken literally; our prime minister is not wrestling with the problem of whether technology actually exists or not. After all, Turnbull is the master of innovation; Tony Abbott once said that he practically invented the NBN, although perhaps we had better not go into that right now.
What Turnbull is presumably saying that he is unconcerned about what kind of technology he employs, particularly when it comes to energy generation. Coal, gas, oil, nuclear, solar, wind, hydro – even parliamentary bluster if nothing else suffices.
It is all the same to him as long as it works, by which he means as long as it is acceptable to the party room. It has little if anything to do with the real issues around climate change: it is all about satisfying Tony Abbott, Barnaby Joyce, George Christensen and Eric Abetz.
For this reason Turnbull also refers to his insistence that the debate must be technologically neutral, which is seriously misleading. Energy generation is not about taking the engine out of gear and letting it coast along as far as it will go; it is about choice, about looking for the most efficient solution.
But of course this involves making very sure that the question can be defined in a way that entails its own answer, which is what Turnbull did. He asked the chief scientist, Alan Finkel, to look for ways to make energy cheap and reliable – and, as almost an afterthought, to control emissions within clear limitations.

Finkel, like Turnbull says he wants to get rid of the ideology around the decade long quarrel; perhaps he is being ironic. Climate change is about science, not ideology.

Finkel, acutely aware of the politics of his brief, could not even consider what his fellow scientists and economists all but unanimously agree would be the best result: a price on carbon, preferably morphing into an emission trading scheme, giving security to investors and mandating a swift and orderly transition towards away from fossils to renewables.
He was forced to opt for second, or even third, best: a so-called Clean Energy Target that continues to offer carrots rather than sticks to polluters, a pious hope that electricity prices can be reduced and a hospital pass to Turnbull and his colleagues, leaving it to them to decide just what the target should be and how – or perhaps if – it can be realised.
Finkel, like Turnbull says he wants to get rid of the ideology around the decade long quarrel; perhaps he is being ironic. Climate change is about science, not ideology; the best minds on the subject agree that man-made emissions, especially of carbon dioxide, are having a measurable effect, overall global warming is increasing and as a result extreme weather events will become increasingly more common and more severe. The ideologues are those who either choose to deny the science, or, even less forgivably, regard their own self-interest as more important than that of the planet.
Step forward Tony Abbott, who sometimes regards the science as crap and at other times not, but in any case sees it as irrelevant. To settle the issue would prevent him from getting into another good stoush, the fading memory of his triumphant mud wrestle against Labor's carbon tax. Thus any olive branch from Bill Shorten must be rejected, and if that involves tossing Finkel under a bus in the process, well, tough.
And so he has hoisted his battle flag, with its heraldic arms emblazoned by a shining lump of coal. In spite of Scott Morrison's bizarre appearance in parliament a couple of months ago, not all Liberals are active coal fetishists. Most, indeed, can probably take it or leave it and the heavy users can, presumably, be weaned away from it – perhaps they can be persuaded to embrace other forms of carbon, like graphite, or better still diamonds.

Only the gullible and desperate have fallen for the hype: Queensland's Labor Premier Annastacia Palaszczuk clearly believes that there will be, sometime, somewhere, a pot of coal at the end of the Adani rainbow.

But coal has become a symbol – an ideology, if you like. It can be used as a casus belli against Labor and that is all that really matters. Finkel, understanding their obsession, has offered them an out – longer life for coal fired power stations and even the prospect of building new or refurbished ones, if anyone silly enough to invest in such anachronisms can be found.
To Labor, the Greens, and probably the majority of the electorate, this is not acceptable; it is fair enough to allow a reasonable time for coal to be phased out, but the idea of encouraging, even subsidising, new coal as part of the energy mix of the future is perverse. Which leads us, inevitably, to Adani.
Adani is not yet a coal mine; indeed many good judges believe it will never be a coal mine, despite all the ballyhoo about its founding chairman Gautam Adani signing off on the project. It has been clear for some time that the economics of Adani are, at best, rubbery, that the claims of jobs are absurdly exaggerated and the actual returns – financial, environmental and social – for Australia are more likely to be a net negative than the bonanza being trumpeted.
Only the gullible and desperate have fallen for the hype: Queensland's Labor Premier Annastacia Palaszczuk clearly believes that there will be, sometime, somewhere, a pot of coal at the end of the Adani rainbow. But even she admits that it will not happen soon; in the meantime she is handing out the prospect of a royalty holiday for Adani (the proceeds of which will presumably end up in the family vaults in the Cayman Islands) and ramping up the pressure for Turnbull to give a billion dollar loan to the company to build a railway to transport its products to the Great Barrier Reef.
It is not certain that this cosy little arrangement is part of the deal Adani signed last week, but what the hell – federal Labor is largely against it, so it makes a great wedge issue, a definite strike in the ideological war Abbott and his colleagues are determined to pursue.
And they will take any allies they can get: Clive James is an accomplished poet and a brilliantly successful entertainer, but as he boasts, he knows bugger all about science, let alone the complexities of climate change. Nonetheless, last week he let fly in The Australian with a barely coherent diatribe like a more literate version of the deranged One Nation senator Malcolm Roberts – and the right wing ideologues lapped it up.
James's last major work was a translation of Dante's Divine Comedy – a medieval fantasy about good and evil, entirely appropriate as a manifesto for the Mad Monk Tony Abbott and his band of crusaders.

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