Some may question whether a courtroom is the best place to create policies to address global warming and climate change. But in a broken political system dominated by tit for tat Twitter attacks, it might be the only place left in America where actual adults can address these issues calmly and maturely. The cities of San Francisco and Oakland have sued 5 major oil companies — Chevron, ConocoPhillips, ExxonMobil, Shell, and BP — claiming they knew decades ago that their operations were causing average global temperatures to increase, and that they kept their knowledge private, putting millions of people at risk. In particular, those who live in the San Francisco Bay Area are likely to suffer damages as a result of rising ocean levels that threaten to put large swaths of land adjacent to the Bay underwater.
One of the adults in the room is judge William Alsup. If his name sounds familiar, he presided over the recent litigation between Waymo and Uber. After he denied a motion earlier this month by the cities to send the case back to state court, he decided to educate himself about the issues by posing a series of 8 questions for the litigants to answer.
- What caused the various ice ages (including the “little ice age” and prolonged cool periods) and what caused the ice to melt? When they melted, by how much did sea level rise?
- What is the molecular difference by which CO2 absorbs infrared radiation but oxygen and nitrogen do not?
- What is the mechanism by which infrared radiation trapped by CO2 in the atmosphere is turned into heat and finds its way back to sea level?
- Does CO2 in the atmosphere reflect any sunlight back into space such that the reflected sunlight never penetrates the atmosphere in the first place?
- Apart from CO2, what happens to the collective heat from tail pipe exhausts, engine radiators, and all other heat from combustion of fossil fuels? How, if at all, does this collective heat contribute to warming of the atmosphere?
- In grade school, many of us were taught that humans exhale CO2 but plants absorb CO2 and return oxygen to the air (keeping the carbon for fiber). Is this still valid? If so, why hasn’t plant life turned the higher levels of CO2 back into oxygen? Given the increase in human population on Earth (four billion), is human respiration a contributing factor to the buildup of CO2?
- What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?
- What are the main sources of heat that account for the incremental rise in temperature on Earth?
The judge’s questions have sparked a lively debate online. Andrew Dessler, a climate scientist from Texas A&M University created a conversation about those questions on Twitter. He applauded Judge Alsup for his unique approach to the proceedings in his courtroom. “Obviously, I wish these issues were not still being debated in court, since they’re not being debated in the scientific community, but I also appreciate the deliberate approach the judge seems to be taking,” he said in a written comment to Grist.
Chevron Will Not Contest That Climate Change Is Real
Lawyers for Chevron say they will not contest that climate change is real. Instead, they say they will accept the findings set forth in the Fifth Assessment report of the Intergovernmental Panel on Climate Change. “Chevron’s neither going to overstate nor understate degrees of confidence. Chevron’s simply going to present the conclusions of the IPCC because Chevron thinks that’s the best and the most accurate way of responding to the court’s tutorial request,” Avi Garbow, co-chair of the environmental litigation group at Gibson, Dunn & Crutcher, the law firm representing Chevron. Garbow once worked in the Obama administration and defended the Clean Power Plan in court when he was general counsel to Gina McCarthy, who headed the EPA at the time, according to Scientific American.
Even though the defendants have not sought to make the reality of climate change an issue in the case, they are still seeking to dismiss the case on the grounds that only the EPA has the legal authority to regulate carbon dioxide emissions under current US law. That’s an interesting strategy, since the fossil fuel companies, via their highly paid shills at the American Petroleum Institute and other industry trade groups, screamed bloody murder when the EPA first proposed to regulate carbon emissions as a pollutant. Which only proves once again that hypocrisy is the best friend of those looking to make a buck while jeopardizing the health of the planet and all the species who live on it.
“This is not the first (or even the second or third) time a plaintiff has tried to plead global warming-related tort claims,” Chevron said in its motion to dismiss. “Similar claims have been considered, and dismissed, by the Supreme Court, the Ninth Circuit, and district courts around the country.”
Climate scientists are distressed that the Fifth Assessment report will become the measuring stick for this litigation. The Sixth Assessment report is now being prepared and will be issued in 2019. Early drafts paint a much darker picture than the current report. Because of the rigorous process that goes into preparing each report (a process that is waved away by climate deniers as mere “junk science”), each report is necessarily several years behind the most up-to-date climate science.
Will this lawsuit be the final nail in the coffin of the oil companies? Probably not. Even if Judge Alsup finds in favor of the plaintiffs, his decision will have to withstand scrutiny from the Ninth Circuit Court of Appeals and a hostile majority of committed climate deniers on the US Supreme Court. But the suit could have important implications nonetheless.
Daniel Farber, a law professor at the University of California, Berkeley, says “Most or all of the major oil corporations have now acknowledged the reality of climate change and the need for government action (though who knows how serious they are about that). So it would be hard for them to take a contrary view in this litigation. Getting them to say the same thing in court will be kind of a victory for the plaintiffs even if nothing else goes their way,” according to the Scientific American story. Maybe baby steps are the best we can hope for at this juncture.
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