'Greens' Win a Victory But Will Likely Lose the War

The United States Supreme Court this week declined to hear a challenge by oil and gas companies seeking to overturn rulings in two lawsuits, both filed by state and local governments seeking billions of dollars because energy company products supposedly caused, or made worse, devastating “climate change."

This is being reported as a victory for the environmental lobby, but those reports are misleading for a variety of reasons. Among them is that "climate” wasn’t actually at issue before the Court in this case. This was a jurisdictional question. The oil and gas companies were hoping to remove the matters to federal court given how the purported rationale — global "climate change" —unsubtly suggests this is not well-suited for resolution by, say, a county superior court in Maryland. 

Meanwhile, after having stumbled in the federal courts, these litigious, progressively-led government plaintiffs view state courts as their best hope to obtain the demanded riches in disgorged revenues, to pay for politicians’ agendas that legislatures won’t fund through direct taxation.

Don't get hysterical.

The Court’s decision to not intervene dealt the oil companies a setback, at least for the time being. This was in fact the second time the Court has dealt with what are now two-dozen such cases in a nationally coordinated climate-litigation campaign. The first case, on a somewhat similar if even more arcane procedural question, did go to argument and the companies prevailed. More cases will make it to the Court in the near future, but these should be viewed as the pre-game warmups. Because inevitably the problem the environmentalists are going to run into is the merits of the cases themselves.

Indeed, this veritable tsunami of state-court lawfare began with demands in the name of companies purportedly causing “climate nuisance.” After setbacks in federal courts in California and New York (the latter affirmed on appeal), as well as a drubbing in New York state court in the first case filed, the plaintiffs adapted. They claim now that, upon further reflection, their demands for billions of dollars from the same parties and citing the very same behavior are really matters of state consumer protection laws, with which the federal courts should not trouble themselves. And so, the campaign of vexatious multi-state litigation to bring their targets “to the table,” to negotiate their way out of the assault and provide the plaintiffs with a “sustainable funding stream,” continues.

There is no doubt this is what is going on. A party whom I assisted in its amicus curiae brief on the previous trip to SCOTUS, Energy Policy Advocates, points out that while the principals do not advertise this — in fact they go to great lengths to obscure it — they also have nonetheless openly, repeatedly admitted it.

Equally farcical is the newfound claim that these claims are not about global this or greenhouse that, at all — which were obvious elements of the claims that led federal judges to declare the issue belongs in federal courts. Now, we are told that was all a misunderstanding.

Yet no change in branding or rhetoric can alter that this is a demonstrably coordinated national campaign to litigate purely local concerns. Further aggravating the pretense, this anti-energy campaign managed out of New York and California is quietly financed by Hollywood through charitable foundations giving “grants” to, and otherwise paying, the plaintiffs’ lawyers. Who nonetheless have been awarded “contingency fee” contracts by progressive politicians to file the suits. It is for just such circumstances, where plaintiffs seem to be playing political odds and hoping for local sympathy, that our system has longstanding doctrine that federal courts are appropriate fora to guard against a legitimate fear of state court bias and other abuse.

In addition to rebranding after losing the first few rounds and realizing that a federal judge might keep the case and even — gasp — take testimony on “the science,” the climate industry had another trick up its sleeve. Immediately, a curious proliferation of briefings arranged for federal and then state and local judges appeared on the calendars of august judicial education organizations. One email obtained by Energy Policy Advocates paraphrases a federal judge on the D.C. Circuit, who is heavily involved in these seminars, as having asked about “counteracting arguments from nonbelievers.” The nerve!

These continue, including several this spring, and appear to be less briefings than indoctrination sessions, featuring plaintiff’s witnesses from past trials and advocates with a history of filing friend-of-the-court briefs in support of “climate action.”

Lemme explain to you how this works...

All of which is all to say that this climate litigation industry is multi-faceted. Other unsavory details include the infamous play by Michael Bloomberg to staff state attorneys general with donor-provided activist attorneys to push his climate agenda, including through filing their own climate suits against industry.

Other donors had a similar idea of providing staff, but to "enhance" congressional investigations. During the previous Congress, the House Oversight Committee pitched in, launching a “year-long investigation” of the defendants. Subcommittee Chair Ro Khanna (D-CA) first boasted that this was guided by former Hill staffers-turned- donor-provided consultants. That was before he denied it. Such behavior is, after all, an ethics violation. Still, it is noteworthy that the donors themselves believed that they were underwriting enhanced congressional oversight through the group Khanna enlisted.

So all seems to be fair in the weaponization of government investigations against political opponents and litigation targets, including subpoenaing them and, we now know, turning over the fruits of that effort to the plaintiffs’ bar. Still, none of it seems to inspire confidence among the plaintiffs. Recently, the campaign to herd these industry targets “to the table” has invoked the prospect of charging energy executives with “climate homicide.” The very extremity of this suggests that they believe their current litigation strategy will likely not prevail.

Clearly, the Supreme Court is going to see a lot of these climate litigants in the future. At its next opportunity, here’s hoping the Court decides to at least place the this current lot of “climate” prosecutions firmly under federal jurisdiction which, we have seen, will also put an end to it. Then it will be on to the next innovation in climate lawfare.

NATO Puts On Green Camouflage

Look below and you will find an eighty-seven second video about NATO and the security implications of climate change. As far as soft-focus videos featuring a succession of images, alternately arresting and heartening, and music of a mildly urgent kind usually go—and that’s how they usually go—it’s not at all bad. I’ve had to watch it several times in preparing this article, and I now more or less enjoy it.

That must count as a success story for the producers because the video is not aimed at me or people like me. I am a supporter of NATO and have been ever since I first became aware of what it was and what it did. Since I was six years old when the organization was founded in 1949, that epiphany probably took place around 1954-55. But it was reinforced very strongly by the Soviet invasion of Hungary and its brutal repression of Hungarians in the following year. The Hungarians were crushed precisely because they weren’t members of NATO which, being a defensive alliance, didn’t cross the Iron Curtain to protect them.

Many people felt a sense of shame at that—and certainly the West might have done more to protest the savagery of the repression—but the conclusion that almost everyone in Western Europe drew was that   if NATO protected them from the Soviet forces on the other side of the Iron Curtain, then it must indubitably be a Good Thing.

From Russia with love.

And most people on both sides of the Atlantic continued thinking that until the velvet revolutions of 1989 and 1991 produced the collapse of the Soviet threat and the first hesitant emergence of an identity crisis in NATO. “Why are we here?” agonized five-star generals and former Secretaries of State. If NATO’s original purposes had been (in the brilliant summary of its first Secretary-General, Pug Ismay, previously Churchill’s wartime military aide) “to keep the Russians out, the Americans in, and the Germans down,” what were its purposes since the Russians were now “out” of their own accord?

Fortunately a new and plausible reason for NATO’s continued importance was quickLy found in Ismay’s second justification: to keep the Americans in (in Europe, that is.) Membership of NATO—which meant U.S. security protection when translated into local languages— became the carrot to persuade the former communist satellites in “Eastern Europe” to adopt painful reforms that would transform them into “market democracies.”

Though genuinely painful for workers in communism’s wasteland economies, the reform programs succeeded well and in a short time-scale of less than two decades.  And though the EU has tried to re-write history (an EU specialty) on this matter, the transformation of “Eastern Europe” into a zone of stability and democracy was overwhelmingly achieved mainly by NATO and the U.S. (with, of course, the help of local governments.) The EU stepped up later to share in the benefits.

That brings us and NATO to the present. For the embarrassing fact is that at least one central purpose of NATO is now is Ismay’s cold-bloodedly realistic desire “to keep the Germans down.” As long as NATO exists under the informal leadership of the United States, no single European country can dominate its security structures. Since only one country could hope to do so if the U.S. were to pull out of Europe, namely Germany, maintaining NATO as the main provider of European security is a way of keeping Germany down or if not actually down, then at least not at the top of the tree.

That’s not an argument that anyone who is near these decisions can make openly. But it is something that shapes the opinions of all the defense ministers around the NATO table—and around the European Union defense table too. For the debates now happening in Europe about a future European defense structure are really proxy arguments over whether Europe should be defended by forces under American command or forces under German command.

It’s hard sometimes to make sense of what participants in these discussions are saying because they talk in riddles. Those who want the Americans to depart denounce President Trump on the grounds that he’s undermined America’s security guarantees to Europe. Those who want the U.S. to stay criticize Chancellor Merkel for not backing her talk of a Europe compelled to become independent with hard cash for defense. Almost the only people who say exactly what they mean are the Poles and the Balts, who leave no doubt that they want American security guarantees and will accept no paper Euro-substitutes.

That’s the real question facing NATO today. Where, then, does climate change come into it?

NATO’s Secretary-General, Jens Stoltenberg, a former Danish Prime Minister, addressed that question directly in a virtual speech to the students of ten major universities a month ago. Mr. Stoltenberg begins by mentioning various challenges facing NATO which included cyber warfare, disruptive technologies, the shifting global balance of power, and climate change. Okay, the first three problems are obviously relevant to military power. But he told the students that he would  focus on the last one:

“Some may ask if NATO, a military alliance, should be concerned with climate change. My answer is that yes, we should. And for three reasons.
1. Because climate change makes the world more dangerous.
2. Because it makes it harder for our military forces to keep our people safe.
3. And because we all have a responsibility to do more to combat climate change.”

None of these three challenges really adds up to much. The first may not even be true. Many experts on climate policy argue cite statistics to argue that extreme weather situations are not getting worse or more frequent. And if turns out that NATO forces may have to launch more missions to rescue people from floods and other natural disasters, that’s a secondary mission that keeps soldiers busy and has a useful public relations function.  We  maintain large military forces to preserve our security, not to do social work.

The second reason is we have to protect the ability of NATO forces to fight in difficult climatic conditions. Well, yes. Napoleon and Hitler made an enormous error in sending troops to fight in Russian winters without warm clothing. Obviously, our military planners  should always think about such matters—not that they always do as my examples suggest—but climate change alters such calculations hardly at all. And thinking about the conditions of warfare should be second nature.

Don't mess with General Winter.

And the third reason boils down to ensuring that our military and logistical planning should be done in such a way as to reduce carbon emissions to net zero by the usual dates. Insofar as this is a general obligation on everyone, the armed forces will doubtless comply. But thinking about such matters should not be a priority. In comparison with countering the most advanced weaponry being developed by the Russian and Chinese militaries (and the subversive methods of asymmetric warfare), holding down carbon emissions is a third-order consideration.

Truth be told, climate change is not a question of military security at all unless some other power is weaponizing climate change against NATO. That kind of thing happens a lot in James Bond movies—usually through the agency of a mad billionaire—and I imagine that some scientists may be locked away in places like Siberia and Wuhan thinking the unthinkable about the climate. Might there even be some DEFRA-type body looking into how NATO itself might weaponize climate change against our enemies too? I hope so even if only for the purposes of deterrence.

Were that to be so, however, I doubt that Mr. Stoltenberg would be mentioning it to audiences of students. They wouldn’t be the right kind of audience for it. But they are exactly the right kind of audience for talks on NATO as an agency for combatting climate change.

In making the case for its own preservation as the primary vehicle for European defense, NATO has to deal with the massive political fact that much European public opinion—and an even larger percentage of German opinion—is both Green and anti-American. Anti-Americanism is the driving force behind the persistent campaign for a structure of European defense separate from NATO  and independent of the United States. It’s to be found on the French Right, the German Left, and in the Brussels Eurocracy.

It is even to be glimpsed in Britain’s Ministry of Defense which is doing its bureaucratic best to keep the UK inside European defense structures “despite Brexit” and without much parliamentary scrutiny. Or so the generals in Veterans for Britain tell us once they are safely retired.

NATO can hardly deal with this directly. It would be too obviously pleading its own (and Washington’s) cause. So it is doing the next best thing—seeking to win over the rising political forces of Green environmentalism which are replacing the traditional social democratic and socialist parties on the Left of European and German politics. On the success of that campaign may depend whether the defense of Europe is conducted in German or English—only thirty years after the reunification of Germany.

And so I must admit to having been mistaken. The video on NATO and the Environment was a hard-headed political pitch for keeping NATO on as Europe’s main engine of defense. It was therefore meant for people like me.

My apologies. I was misled by its green camouflage.