The 'Climate Change’ Crew's Frivolous Lawfare

Clarice Feldman07 Sep, 2023 3 Min Read
Methane gas in the dock in the 15th century.

Creating irrational fears of a "boiling" earth; melting glaciers and catastrophic rises in sea levels; endorsing the mistaken belief that government can protect us from such fantasized climate dangers coupled with the notion that mandating premature and unrealistic technological advances will make these “dangers” magically disappear lies at the heart of the Left’s "climate change" fairy tale.

Indications are that most people are no longer falling for this. True, the American Congress has supinely gone along with subsidizing inefficient and expensive alternatives to conventional energy production, but as people here and in Europe are experiencing the actual costs of indulging this make-believe, it is becoming ever more difficult for governments the world over to continue to manipulate and make more costly this critical need – energy – that capitalism provides so cheaply and abundantly. In polling, Americans rank "climate change" far down their list of concerns, after the economy, inflation, crime and immigration, all issues which have been poorly managed by the Biden White House.

I’m in agreement with George Gilder, who said:

What governs economics and flourishing is human creativity. Innovation and growth are capitalism’s infinite promise…. Look around at the super abundance that’s been created in the world in the last 250 years. Billions of people have been lifted out of poverty and are living longer healthier lives. All these good things that are happening will keep happening if we simply keep what are essentially Marxist zero sum “solutions” from getting in the way and instead let freedom and human creativity work its magic.

It's that simple!

Nevertheless, as public support for "climate change" hooey wanes, inventive trial lawyers representing New York, San Francisco, other liberal cities and counties that are failing their citizenry have come up with a new tack: legal shakedowns. As UC Berkeley professor  John Yoo notes, they're trying to “distort tort law, our nation’s system for resolving accidents and harms, and seek outlandish damages from energy companies for the alleged harms of global warming.” They're after funding from producers, refiners, and gas sellers to compensate for imaginary global-warming “induced sea level rise, flooding, erosion, and harm to municipal infrastructure and water systems,” and demand an “adaptation program” to pay for sea walls, raising the elevation of buildings’ and other infrastructure modifications.

Aside from the absence of any factual basis for their contentions, there’s good law against their claims. It is from the federal government that these companies receive their licenses to extract oil and gas. That should dispel the notion that the companies should pay damages for doing what they’ve been licensed to do by our elected representatives.

Yoo also argues that this attempt to use the law to decide how to balance our mix of energy sources should fail because such questions are best left to Congress, a body better suited constitutionally and in fact to make such balancing. Of course, there’s every likelihood that a crackpot judge or two will buy this argument, but Yoo has the better case and, in the end, that is what is likely to prevail. Nor is there any basis to believe that settling these alleged "damages" would have any real effect on global warming.

State tort law confers no right to control conduct outside their borders and "global warming" does not take effect within any single state. But, observes Yoo, "eighty-five percent of the world’s greenhouse gas emissions are produced outside the country.” The Supreme Court has explicitly and unanimously acknowledged as much, as in American Electric Power Co. v. Connecticut (2011). The opinion by Justice Ginsburg found that "the Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."

It’s devilish and unlikely, but wouldn’t it be fun if the defendants should offer to stop selling fossil fuels and fossil-fueled generated power to the plaintiffs? Play stupid games and see how that works.

Clarice Feldman is a retired attorney living in Washington, D.C. During her legal career she represented the late labor leader Joseph ("Jock") Yablonski and the reform mine workers against Tony Boyle. She served as an attorney with the Department of Justice Office of Special Investigations, in which role she prosecuted those who aided the Nazis in World War II. She has written for The Weekly Standard and is a regular contributor to American Thinker.


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2 comments on “The 'Climate Change’ Crew's Frivolous Lawfare”

  1. That stupid illistriation above just shows the Eco-Freaks are total idiots who beleive everything they're told about this Fragile Earth load of Nonsense

  2. “Yoo also argues that this attempt to use the law to decide how to balance our mix of energy sources should fail because such questions are best left to Congress, a body better suited constitutionally and in fact to make such balancing.”
    God forbid! Choosing between Congress or the judiciary to effect one’s energy policy preferences is like choosing between climbing a mountain of feces or swimming a river of diarrhea. Either way, it’s a disastrous choice because they’re two different forms of central planning excrement. The government’s only proper role is to facilitate human freedom—freedom of choice. Let the free market decide what form(s) of energy should be developed. Remember, Yoo was the same genius who argued that the government was justified in using torture (in the case of 9/11 suspects) so one needs to be circumspect of the philosophical premises upon which Yoo opines on matters of state power, including energy policy.

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