Sunday, July 23, 2017

Lawsuit on Climate Change - Marin Co. v Chevron et al

Subtitle:  Saying It Is So in a Lawsuit Does Not Make It True

The lawsuits just keep coming in the climate change "shaky science" arena.  Or, as some would call it "Bogus Science"  where that abbreviates to BS.   This one is actually a triple lawsuit, with California counties Marin and San Mateo filing separate lawsuits, and Imperial Beach (a coastal city near San Diego) filing yet a third lawsuit.   
Attorney; Arguing his Case

This article will address some of the legal claims, the "facts" listed in the Marin County complaint that supposedly support those legal claims, and what grounds, shaky or firm, those facts stand upon.   A few legal defenses that likely will apply are discussed.  The Marin County complaint is the basis for this article.   There are so many issues to discuss, this article will likely be updated over the coming weeks and months.  

For the bare information, the Marin County complaint is Case Number CIV1702586.  It was filed in Marin County Superior Court on July 17, 2017.   The complaint lists eight causes of action and comprises 111 pages.  The named defendants number 37, although many are the same company operating under slightly different names.    The complaint may be found online at this link.  The link leads to a PDF file of approximately 2.1 MB size. 

Overview of the Complaint

Marin County claims that injury or damage will occur to its long coastline due to sealevel rise that is caused, and will be caused in the future, by greenhouse gases that were released by public consumption of fossil fuels oil, coal, and natural gas.  These fossil fuels were produced and sold by the listed defendants, mostly oil and coal companies.  Further, the complaint contends that the production companies knew decades ago that the use of their products would cause global warming and sealevel rise.   Even knowing the global warming would occur, they contend, the defendants produced and sold the products without warning the customers.   Marin County is outraged; and wants compensation from the defendants.  

The County is so outraged, the demand for relief includes this line:  "equitable disgorgement of all profits Defendants obtained through their unlawful and outrageous conduct."  (Complaint p. 82, lines 1-2.)   As an aside, that would amount to many hundreds of billions of dollars, if the court were to agree.  

The Complaint tells a fairly fascinating story, but hardly any of it is true. The story is supported by numerous references and footnotes, however those are cherry-picked to support the story line.  References that completely refute the story line are, of course, not mentioned. 

Marin County is just north of San Francisco, with the Pacific Ocean on the West and San Francisco Bay on the East.   It forms the northern part of the entrance to San Francisco Bay; with the famous Golden Gate Bridge's northern portion located in the county.   It is fairly small in size, only 520 square miles of land, although the county claims another 300 square miles of water (per Wikipedia, so who knows how accurate all that is).   The county is famous, or infamous, in California as having some of the wealthiest residents (more than $100,000 annual income per family) with the kookiest views.   Voter registration records indicate that more than 77 percent of the voters registered as Democrat, 15 percent as Republican, and the rest as Other. 

Situated on the northern peninsula as it is, Marin County has beach and shore on both the Pacific Ocean and the bay.   This is vital to the legal complaint because the County contends serious damage will occur to the shore as climate change causes unstoppable sealevel rise.  

The Complaint lists 8 causes of action, listed here for convenience.

  1. Public Nuisance  - on behalf of the People of the State of California
  2. Public Nuisance
  3. Strict Liability - Failure to Warn
  4. Strict Liability - Design Defect
  5. Private Nuisance
  6. Negligence 
  7. Negligence - Failure to Warn, and
  8. Trespass. 

The complaint then lists what it calls "Facts" that requires 55 pages to describe. 

Likelihood of Success on the Merits

The complaint was, lucky for Plaintiffs, filed in the state court in California.  This allows them a better chance of actually going to trial and not being thrown out for lack of standing.  Recently, federal courts have dismissed such lawsuits on lack of standing grounds.   California has a more relaxed standard for hearing the complaint. 

However, the Defendants must survive a challenge, a Motion for Summary Judgment.   Plaintiff will likely file such a motion, claiming there are undisputed facts that show there is no reason to proceed to trial.  However, with climate science as the subject, essentially every fact in the complaint is subject to dispute.   About the only undisputed fact is that burning fossil fuels does, indeed, produce carbon dioxide.  Whether the carbon dioxide acts as a greenhouse gas is certainly the subject of dispute.   The gas CO2 does absorb infrared heat, or radiant heat, under some conditions; that is not subject to dispute.  However, whether the CO2 absorbs a sufficient amount of radiant energy to make any difference is quite debatable.   On balance, Plaintiffs would likely not succeed on the Motion for Summary Judgment.   That brings the matter to the trial stage. 

There would be intense legal activity in discovery, to find documents and other material that may be suitable as evidence for trial.   There would be intense activity with expert witnesses for both sides. 

Finally, the trial would occur.  

The result would be that a jury would be very confused with some experts claiming one thing while other experts claim the opposite.   SLB wrote on this very subject a while back.  see link   to "Science in the Courts - A Communication Problem; Also a Matter of What is Truth" 1 January 2016, R. Sowell.

The defendants would have a chance of success by showing several things are true about Bogus Science, BS in climate change.  

First, the underlying data has been modified, changed, altered, adjusted multiple times.  Many, many times.   This is true whether the data in question is land surface temperatures, ocean surface temperatures, sealevel rise, and other data sets. 

Second, each time the data is adjusted, climate scientists announce the new results with solemn faces and a plea to trust them, these results are true.   Then, of course, a few years later the data is changed again.  The climate scientists act as if the public has zero memory, that archives do not exist, and their previous announcements simply did not occur.  

Third, the many dire predictions by the BS have not occurred, despite more than 50 years of fossil fuel use in the industrialized era.   With respect to sealevel, no islands have been sent underwater.  No populations have been displaced.   Further, the natural, normal process has sealevel increasing over time.  This itself deserves a full paragraph. 

Fourth, the distinction must be made between natural causes and man-made causes for any climate-related outcome.  Defendants would do well to point to the long-term record of sealevel rise, over many thousands of years.  The fact is very plain that nothing abnormal has occurred in sealevel rise over the past 100 years.   

One of the natural causes that appears to be sealevel rise is actually land subsidence.  Defendants should emphasize this point.  

Another natural cause that appears to be man-made global warming is the normal, natural cycle of climate through mini-ice ages, full ice-ages, and warmer periods.  The Earth is presently in a natural warming cycle after a few hundred years of a mini-ice age that ended in approximately 1850.  It is pure BS (bogus science) to claim a coincidental correlation of increased CO2 emissions with increased average air temperature is caused by the CO2.  The fact is, multiple times in the past, the Earth had similar cold-warm cycles when fossil fuel use was so small as to be trivial. 

Fifth, defendants must listen, and read, closely to determine which points the BS plaintiffs make are based on the results of computer models.  These are extremely faulty, inaccurate, and simply do not predict reality.  The main body of climate scientists, the IPCC (Intergovernmental Panel for Climate Change), states quite clearly that it is impossible to effectively model the climate because the system is inherently unstable, chaotic, and for other reasons.  

Here ends the article for now.   More will be added, most assuredly. 

Roger E. Sowell, Esq.
Marina del Rey, California
copyright (c) 2017 by Roger Sowell - all rights reserved

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