By Andrew Stuttaford
Thursday, February 12, 2026
Whether because of genuine terror of a climate apocalypse
or a sharp appreciation of the political opportunity presented by such fears,
there is an unmistakable authoritarian tendency within climatism or those who
hope to benefit from it. So, in 2010, for instance, James
Lovelock, a man who did not hide what he thought (he later walked back his climate alarmism), wrote in The Guardian:
Even the best democracies agree
that when a major war approaches, democracy must be put on hold for the time
being. I have a feeling that climate change may be an issue as severe as a war.
It may be necessary to put democracy on hold for a while.
Under the circumstances, the fondness of some greens for “citizens’ assemblies” that would
supplement (not, of course, replace) existing legislatures, especially
(but not solely) in considering climate issues is no coincidence. France’s
President Macron convened the Citizens Convention for Climate in
2019–20. Disappointingly for its participants, many of their predictably
oppressive proposals were rejected by the French parliament. Democracy had
failed the planet again! While many polls show some concern about the climate,
few respondents are keen on following — at least in any manner that will be
much of a burden for them — climate policymakers’ prescriptions. Despite this,
and despite the destructive absurdity (and futility) of so much of the
Paris-style agenda, a good bit of it is being pursued, mainly in the West and
particularly in Europe, although the U.S. has not been immune.
All too often this involves bypassing the ballot box with
methods characterized by ingenuity rather than fair play. This has included
recourse to transnational “governance,” a hazy, metastasizing system in which
both opacity and smugly collegial decision-making can lock in measures that
electorates, given the chance, would disdain. As journalist Leigh Phillips relates, it “operate[s] on the
basis of consensus among ‘stakeholders’ rather than . . . democratic popular
mandate.” “Stakeholder” is a word that voters should dread.
And not only voters. Talk of stakeholders was ubiquitous
in the marketing of ESG, a bogus investment “discipline” used to rob investors
as well as voters. Tellingly, this scam, which blended corporatism, greed, and progressivism, owed much of its
ascent to a report by a London-based
international law firm. This had been commissioned by an obscure working group established under the auspices
of a marginally better-known U.N.
program.
ESG (the “E” stands for environment) together with its
symbiont, stakeholder capitalism, were parts of a broader operation
to conscript
private capital into the climatist cause, an
operation that never required democratic consent and until recently received
little democratic scrutiny. Much the same can be said of the way that other
aspects of climate policy have been assembled by an unelected caste that
includes national, international, and transnational bureaucrats, NGOs, professional bodies, self-appointed committees, grifters, regulators,
highly politicized foundations, mission-creeping courts, and countless
busybodies, only one of whom is a former mayor of New York City.
The economic damage inflicted by climate policies in
Europe is stirring up discontent, but the EU’s institutional process makes it
difficult to change course. Moreover, buttressed both by EU and national law as
well as the decisions by the (non-EU) European Court of Human Rights, a court
that has long since gone rogue, the crusade to litigate a path to a cooler
planet (one day) has continued apace.
Climatism has less of a grip in this country than in
Europe, and such grip as it has may be weakening. But the U.S. doesn’t lack
either creative trial lawyers or activist judges. For now, lawfare is one of
the best weapons in the climate warriors’ arsenal. Some three dozen lawsuits are in the
American legal system, with more to come.
A number of these are based on the ancient common-law
tort of “nuisance.” In today’s U.S., this takes two forms (warning:
oversimplifications follow). Public nuisance is the unreasonable (but not
necessarily illegal) interference with rights enjoyed by the general public
such as to their health or safety. Private nuisance can occur when an
individual’s right to enjoy his or her property is significantly and
unreasonably disturbed by activities that are again not necessarily illegal.
Nasty smells from a neighboring factory might do the trick.
Climate activists are stretching the reach of (principally public) nuisance
law a very long way, transforming it into yet more “legislation” passed outside
the democratic process. Fortunately, there has been pushback. In American
Electric Power Co. v. Connecticut (2011), the
Supreme Court found that the EPA’s authority to regulate greenhouse gas (GHG)
emissions could “displace” a plaintiff’s ability to file a public-nuisance suit
under federal law. I wonder what the recent repeal
of the “endangerment” finding that gave the
EPA that authority will mean, but that is a discussion for another time.
In City of New York v. Chevron Corp. et al., a public-nuisance case, the plaintiffs sought to hold
Chevron, ConocoPhillips, ExxonMobil, Royal Dutch Shell, and BP — all Western
companies, not so curiously — liable for some of the consequences of climate
change under New York State tort law (the case went through the federal courts
for procedural reasons). Yet at about the time the litigation
began, the world’s largest oil-producing companies were
(in order) Saudi Aramco, Russia’s Rosneft, Kuwait Petroleum Company, NIOC, the
National Iranian Oil Company, China National Petroleum Company, yes,
ExxonMobil, Petrobras, the UAE’s ADNOC, yes, Chevron, and Pemex. Ruth Bader
Ginsburg in American Electric Power, reminds us that emissions “in New Jersey may contribute no
more to flooding in New York than emissions in China.”
Holding specific oil companies responsible for specific
harms supposedly caused by man-made climate change makes a hash of any sensible
notion of causation, and not just for the reasons given by Ginsburg. As the
U.S. Court of Appeals for the Second Circuit noted in a judgment upholding a lower court’s
dismissal of New York City’s case, Gotham was requesting damages for “the cumulative
impact of conduct occurring simultaneously across just about every
jurisdiction on the planet” (emphasis added). The plaintiff nodded to this by
pointing to the relatively larger historical role played by some of the
defendants since “the mid-nineteenth century.” But back then and for much of
the time since, the contribution to total GHG emissions by oil has been
exceeded by coal, sometimes by a considerable margin, and much of the latter
will still be in the atmosphere.
And why focus only on the suppliers of fossil
fuels? If plaintiffs are looking for people to blame, should they not also turn
on the miscreants who directly or indirectly use those fuels, such as
manufacturers, construction companies, farmers, mass-transportation companies,
commuters, drivers, households, and so on and so on? The list is endless. As
the South Carolina court phrased it in City of Charleston v.
Brabham Oil Co., “The plaintiffs cannot use South Carolina law to seek
redress for cumulative emissions from billions of sources worldwide.” Billions?
Yes. If it had been brave enough to follow its own arguments through to their
logical conclusion, New York City should have sued itself and, among many, many
others, its own citizens, admittedly a politically dicey maneuver.
Unless fairness is to be jettisoned along with democracy,
litigation is too crude a tool to resolve the issues raised by a changing
climate. The court in the New York case was correct to note that “to permit
this suit to proceed under state law would risk upsetting the careful balance
that has been struck between the prevention of global warming . . . and energy
production, economic growth, foreign policy, and national security.
Put another way, the court recognized not only this
subject’s complexity but also the trade-offs that come with it, a balance more
properly decided by legislatures than judges. That is not what climatists want.
They know how voters would react if asked how much they are prepared to pay in
terms of living standards, economic growth, and national security in a “race” to net zero in which India,
China, Russia, and Indonesia have little interest in participating.
For all that, it’s clear from cases such as Mayor and
City Council of Baltimore v. B.P. P.L.C., et al., which primarily revolve
around public nuisance, that state courts can, at least in theory, consider
such suits under their laws, raising the possibility of 50 different answers to
roughly the same question. For courtroom climate warriors, the uncertainty
thereby fostered in fossil fuel companies’ C-suites is a feature, not a bug.
More uncertainty equals less capital and less investment.
As it happens, the Baltimore case foundered in its home
state (so far: there is an appeal). A Maryland judge ruled in 2024 that “global
pollution-based complaints were never intended by Congress to be handled by
individual states.” And neither were “interstate controversies,” let alone a
dispute that ought to reflect the fact that more fossil fuels were used outside
the U.S. than in it: “Only federal law can govern claims based on foreign
emissions, and foreign policy concerns foreclose any state law remedy.”
On the other hand, Hawaii’s supreme court allowed a case launched by Honolulu against
numerous oil companies to proceed. Without giving reasons, SCOTUS declined to
intervene. There has been speculation that this was because an important
element in the case rests on the defendants’ allegedly deceptive practices —
not warning about climate risks — malpractice that remained within the state’s
jurisdiction.
Similar arguments failed in New Jersey (there may yet be an
appeal), New York, Pennsylvania, and South Carolina, as on any reasonable basis they should
have. If damage (allegedly) attributable to climate change is not actionable,
failure to warn about it should not be either. Besides, the idea that CO2
emissions might warm the climate has been in circulation since the 19th
century, and warnings about the consequences have been growing louder
and louder for decades. In her judgment in the New York case, the judge observed that, in another case,
the same plaintiff had alleged “there is near universal consensus that global
warming is primarily caused, or at least accelerated, by the burning of fossil
fuels.” It could not, she declared, “have it both ways by, on one hand,
asserting that consumers are aware of and commercially sensitive to the fact
that fossil fuels cause climate change, and, on the other hand, that the same
consumers are being duped by Defendants’ failure to disclose that their fossil
fuel products emit greenhouse gases that contribute to climate change.”
Nevertheless, the Honolulu case rolls on, as do other
state-law climate cases including a much-watched suit by the City of Boulder
and others. The Colorado Supreme Court has ruled
that it can proceed, but SCOTUS has yet to give its view.
In Leon v. Exxon Mobil, oil companies are being sued for a
Washington State woman’s death from hyperthermia “during the hottest and
deadliest heat wave the Pacific Northwest has ever experienced.” A federal
court rejected the defendants’ attempt to transfer the case into the federal
courts, and it’s now moving forward under state law.
Leon may foreshadow the arrival in courts of “climate homicide,” a concept being pushed, among others, by
David
Arkush, the director of Public Citizen’s Climate
Program, and that could be expanded to include lesser offenses
such as “reckless endangerment.” The criminal justice system could be exploited
far more effectively than any civil suit. Arkush has mused about “rewrit[ing] the charters of fossil fuel
companies and requir[ing] them to advance the clean energy transition and
donate proceeds to resilience, adaptation and compensating people for past
harms.”
And all without the need to consult voters.
Legislation by litigation is easier under a constitution.
Judicial interpretations of a constitution’s language can become entrenched,
almost beyond the electorate’s grasp. This is an alluring prospect for
climatists and judges who may share their views. In Held v. Montana, the state’s supreme court agreed
with the plaintiffs, a group of children backed by a “public interest” law
firm, that the provision in the Montana Environmental Policy Act
prohibiting the state from considering climate change before approving fossil
fuel projects was unconstitutional. Legislators responded by passing new laws
to which the original plaintiffs (and some reinforcements) have mounted a new
challenge.
Montana House Speaker Brandon Ler, a sponsor of some of the new
legislation, complained about “activists . . . using the courts to achieve
outcomes they cannot win through the legislative process.” His annoyance is
understandable, but the judiciary’s ability to overrule the legislature is part
and parcel of a constitutionally based order. Overturning the Held cases
and any successors may take a constitutional amendment, and as is true
elsewhere, Montana’s is not easy to amend.
Unless the Supreme Court and/or legislators at the
federal or state level step in more forcefully, climate cases are not going
away. There is plenty of money to fund them from deep-pocketed governments, aggressive trial lawyers (whether motivated by profit, ideology or both), leftist
foundations, and NGOs. The increasing unpopularity of today’s climate policies
— together with their partial reversal under the Trump administration — will
mean more lawsuits, not fewer.
The authors of an amicus brief filed with SCOTUS by 20
states ahead of its hearing of the Honolulu case talked of “a clear split
between courts that will entertain state-law suits over interstate emissions
and courts that will not.” The result will almost certainly be, as the South Carolina court put it, to create
a “chaotic web of conflicting legal obligations.”
That is because there’s an obvious danger that, sooner or
later, one or more of these plaintiffs will win a victory of an importance that
far transcends their win in Montana. To borrow some wording from the Honolulu
amicus brief, that could “trigger a national emergency or fashion a patchwork
of new taxes on the Nation’s energy system that would make life harder for
every American.”
Such a victory would not be a victory for the U.S. Who
could want that?
Texas Republican Sen. Ted Cruz at
a hearing Wednesday accused environmental groups, backed by China, of waging a
“full-spectrum assault” against fossil fuels through climate change litigation.
Backed by China?
To be continued . . .
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