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

Topics and general links:

Nuclear Power Plants.......here
Climate Change................here  and here
Fresh Water......................here
Engineering......................here  and here
Free Speech.................... here

Renewable Energy...........here  

Climate Science, Free Speech and Legal Liability - Part 1

Subtitle: Lies and Legal Liability

The field of climate science, with controversial issues such as whether the planet is warming

Courthouse in Central Texas

due to man's burning of fossil fuels, or the world is blissfully ignoring additional carbon dioxide in the atmosphere, or perhaps the globe is cooling down into the next ice age, has created and still creates vigorous expressions of opinion, and some name-calling, defamatory statements, and calls for deliberate lies and deceit.  There appears to have also been outright lies, false statements, and fabrication of data, among other deceitful practices.   This article explores some of the legal ramifications, criminal cases and Defamation in Part One.  Part Two will continue the discussion on more of the civil causes of action.

We begin with what is Freedom of Speech?  United States law is the basis here, with the understanding that other countries have different laws respecting Free Speech.   Free Speech is a fundamental right guaranteed by the First Amendment to the US Constitution, "Congress shall make no law... abridging the freedom of speech . . . "   From that simple phrase, many thousands of pages have been written over many decades.   Free Speech means, in general, that a person can say or write whatever he or she pleases, however, there are quite a number of restrictions that legally limit this.  In effect, a person may still say or write whatever he or she pleases, but there can be legal consequences.  Those consequences can range from a nominal award of $1, to millions of dollars in damages, up to the ultimate penalty of death after trial and conviction.  The death penalty sounds harsh, for simply speaking some words, but that is the case and will be examined shortly.   The Free Speech clause in the Constitution limits the government from passing laws regulating speech.  The courts have allowed quite a number of exceptions to Congress’ power regarding Free Speech, so that we have a more orderly society.  There are both Federal and State laws regulating speech.  Also, Free Speech has been recognized to include oral and written communication, plus expressive conduct.

It is convenient to categorize Free Speech laws by the type of court in which the case will be heard, either criminal or civil.  Crimes are examined first.

Speech as a Crime

In the criminal courts, speech can be a crime; for example perjury, sedition, treason, death threats, child pornography, unlawful campaign contributions, false statement to a government official, false statements as an element of fraud, impersonation of another, hate speech, and conspiracy to commit other crimes.   Punishments range from a monetary fine and jail, to prison, to the death penalty.

Perjury is the willful utterance of false statements while under oath.  The penalty can be prison of a few years, however if the false statements under oath result in the conviction and execution of an innocent person, the perjurer is also liable for execution after trial and conviction.   In the climate science context, it is conceivable that a person could be charged and convicted of perjury.  One must merely give false statements while under oath, as a general statement of the rule.  There are numerous caveats, however.

Sedition is “an agreement, communication, or other preliminary activity aimed at inciting treason or some lower commotion against public authority.” (Black’s Law Dictionary; the Federal law has similar language but more detail.)

Treason is “attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.” (Black’s Law Dictionary; as with Sedition above, the Federal law has similar language but much more detail.)

A death threat is a “threat to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal,  unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety. . .” (California Penal Code Section 422)  Within the climate science context, it is unfortunate to observe some of the participants escalating the verbal wars to this level. 

Child pornography is “material depicting a child under 18 in sexual activity.” (Black’s Law Dictionary; various state laws have similar definitions; see e.g. California Penal Code Section 311.2(b)).  One hopes that the various players in the climate change arena do not commit this crime. 

Campaign contributions can be considered speech by expressive conduct.  Such campaign contributions are limited by the Federal Election Commission regulations found in 11 CFR 110 and following. 

False statement to a government official is a crime, for example, a false statement to a police officer that a crime has been committed. (California Penal Code Section 148.5)

False statements are an element of fraud where it is a crime to deprive another of money or property by a false statement or misrepresentation.  (California Penal Code Section 484).   This can apply to anyone who obtains money, as in a research grant, based upon false statements in the grant proposal. 

Impersonation of another is a crime where a “person . . .knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person. . .”  Punishment is up to $1,000 and one year in county jail.  (California Penal Code 528.5)  It is also a crime to impersonate a police officer.   In the climate science context, a famous case is that of Dr. Peter Gleick, who allegedly impersonated another in order to gain access to confidential information at the Heartland Institute, a known skeptic organization active in the climate science arena.  See link.  

Hate speech is the crime where a “person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed: (1) Disability, (2) Gender, (3) Nationality, (4) Race or ethnicity, (5) Religion, (6) Sexual orientation, (7) Association with a person or group with one or more of these actual or perceived characteristics.” (California Penal Code Section 422.55 and 422.6)

Conspiracy to commit other crimes is “an agreement by two or more persons to commit an unlawful act.” (Black’s Law Dictionary)  Where the agreement is made by discussions, or speech, such speech is unlawful.  This brings a great number of crimes within the realm of illegal speech, literally hundreds.  Any crime without a speech requirement, such as but not limited to burglary, theft, arson, robbery, rape, mayhem, murder, manslaughter, assault, battery, trespass, etc. that have an associated crime of conspiracy to commit X, makes the speech illegal.

Speech as Civil Causes of Action - Defamation

In the civil courts, speech can give rise to causes of action in defamation, false light, copyright violation, false claim of inventor, fraud (contract context), deceit, fraudulent statements (intentional, negligent, concealment, opinion as fact), appropriation of likeness, false claim against the government, infliction of severe emotional distress (intentional and negligent) and others.  The remedy for the prevailing party in such actions generally is money damages, but can also include restitution, an injunction, a public apology, public retraction, payment of attorneys’ fees, and punitive damages.  Defamation is discussed briefly below.  The climate science context is emphasized, where the cause of action may involve climate science.   The remaining dozen or so categories will be discussed in Part Two.

Defamation is “the act of harming the reputation of another by making a false statement to a third person.”  (Black’s Law Dictionary)   Where the false statement is made verbally, the tort is slander.  Where the publication is made in writing, the tort is libel.  There are several important distinctions in the tort of defamation, including whether the plaintiff is a public figure or private figure, whether the matter is one of public concern or private concern, whether the false statements were made with malice or not, and whether the false statements were one of a category for which no damages need be proven, or per se.  Given the number of distinctions, libel/slander, plaintiff is a public/private figure, public/private concern, malice or not, and per se or not, there are many possible combinations of the tort and detailed laws for each.  Here, an example is given only with the combination of libel, plaintiff is a private figure, the matter is one of public concern, no malice need be shown, and the statements needed no damages to be proven.   These distinctions are chosen to best match the issue in climate science. 

The elements that must be proven are a false statement, made about another, that injured the other’s reputation, and the statement was made to one or more third parties.  In addition, plaintiff must prove that the third party reasonably understood that the statement was about plaintiff; that because of the facts and circumstances known to the reader of the statement, it tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.  Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.

Regarding the issue of what is a public concern, courts have observed: “if the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” ( Copp v Paxton (1996) 45 Cal.App.4th 829, 845) Climate science, and especially global warming or climate change as it is now known, would certainly qualify as a public controversy.   Governments and non-governmental bodies have produced lengthy volumes of climate science documents, held highly publicized meetings all over the world for decades, and have had the topic front and center in many publications and internet websites, all on climate change. 

The next major point is, what is a false statement in climate science?  A false statement can be intentional, negligent, or by concealment.  An intentional false statement is one which the defendant did not believe to be true.  A negligent false statement is one which the defendant had no reasonable ground for believing to be true.  A false statement by concealment is one in which defendant suppressed a fact when he was bound to disclose it, or when defendant gives information of other facts which are likely to mislead for want of communication of that fact. (California Civil Code 1710). 

This is the heart of the matter, the falsity of the statement.  One can imagine numerous scenarios of defendants making false statements about another that qualify for one or more of the above three definitions: intentional, negligent, or concealment.  Examples of intentionally false would be “he has no training”, “he is incompetent,”  “he makes things up,”  “he takes money from oil companies,” and such.   Negligent falsehoods would be those for which no data exists, or the scientist simply makes up data.  Concealment would be the case where scientists deliberately decline to state the facts that clarify or even provide the true state of affairs.   One of the finest arts of telling a lie, it is said, is to tell only that part of the truth that misleads the other. 

If the statement or statements can be shown to be false, they must next be published to a third party.  In effect, if anyone other than plaintiff reads the libelous statement, that is sufficient.  With the internet, there can be millions of third parties who read the libelous statement. 

Next, the false statement must have injured the plaintiff’s reputation.  Injury to reputation is shown that because of the facts and circumstances known to the reader of the statement (the third party), the false statement tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.   This can be shown by testimony, by business records showing a decline, by statements showing hatred or contempt or ridicule, by plaintiff testifying to feelings of shame, or that others were discouraged or actually stopped associating or dealing with plaintiff. 

Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.

In the climate science context, it appears that defamation by libel occurs regularly on the various internet blogs (weblogs).  An actual lawsuit for libel is currently in process between plaintiff Michael E. Mann, PhD, and defendants Mark Steyn, National Review, and Competitive Enterprise Institute.  Professor Mann filed the lawsuit alleging libel.  See link 

Note: a related article discussed legal liability for criminal negligence in terms of climate science, see link 

Roger E. Sowell, Esq.

Marina del Rey, California

The above is written to provide an overview of a general area of the law, and is not intended, nor is it to be relied on, as legal advice for a particular set of facts.  Specific legal advice is available from a qualified attorney;  and anyone who seeks such advice is encouraged to contact a qualified attorney.

EPA CO2 Endangerment Finding Review by OIG

The US EPA’s Office of Inspector General (OIG) released today its report titled “Procedural Review of EPA’s Greenhouse Gases Endangerment FindingData Quality Processes.”

It is important to note that this was a Procedural review and not a Substantive review of the underlying science.   Procedural review merely means comparing the procedures that EPA used to what is required under the various laws and regulations.   Substantive review means evaluating the data and science that EPA relied on in forming their Endangerment Finding.   The Procedural rules that EPA must follow depend on whether the Technical Support Document (TSD) is a “highly influential scientific assessment” or not.  OIG considers the TSD to be a highly influential scientific assessment, but EPA did not.   There is a higher standard of care, or procedures that must be followed, for a highly influential scientific assessment.  It is these additional procedures that OIG found lacking in EPA’s work.

Background

For some background, and a description of a TSD:  As the primary scientific basis for EPA’s finding, the [EPA] relied upon assessments conducted by other organizations [the IPCC, National Research Council, and US Global Change Research Program].  EPA summarized the results of these and other scientific assessments in a technical support document (TSD).  There are specified criteria by which a document is to be judged to determine if it is a highly influential scientific assessment.  OIG presents these criteria in its report as:

“A highly influential scientific assessment is a scientific assessment that: 

·       

• A) Could have a potential impact of more than $500 million in any
  year on either the public or private sector, or
  
  
  B) Is novel, controversial, or precedent setting, or has significant
  interagency interest.”

OIG stated the level of peer review for the highly influential scientific assessments, and goes on to say that:

“For highly influential scientific assessments, OMB guidance requires more attention to peer review consideration such as individual versus panel review, timing, scope of the review, selection of reviewers, disclosure and attribution, public participation, and disposition of reviewer comments. If the material to be disseminated falls within OMB’s definition of highly influential scientific assessment, OMB requires the agency to adhere to the peer review procedures identified in Section III of its bulletin.

OMG guidance also requires that agencies certify compliance with the requirements of the bulletin and information quality guidelines when using influential scientific information or highly influential scientific assessments to support a regulatory action. This certification and other relevant materials should be included in the administrative record for the action.”

Next, OIG discussed what the EPA did procedurally.  “EPA had the TSD reviewed by a panel of 12 federal climate change scientists. This review did not meet all [Office of Management and Budget] OMB requirements for peer review of a highly influential scientific assessment primarily because the review results and EPA’s response were not publicly reported, and because 1 of the 12 reviewers was an EPA employee.”

No public reporting of the 12 scientists’ review, no public reporting of EPA’s response to that review, and having an EPA staff member as one of the 12 scientists were cited as procedural errors. This is essentially, for the first two errors, a lack of transparency.  The public does not know what the reviewers found and reported, nor the EPA’s response, if any.  Were the findings unanimous?  Or, was there a split of opinion?  Did the EPA ignore the review panel’s findings?  At this point, we don’t know.   The obvious conflict of interest from the reviewer who is an EPA staff member should have made his or her opinion or vote irrelevant.   OMB requires an external peer review.

Reasons Given by EPA why TSD was not Considered a Highly Influential Scientific Assessment

“They [EPA} noted that the TSD consisted only of science that was previously peer reviewed and that these reviews were deemed adequate under the Agency’s policy. They also stated that, as described in the final Federal Register notice, the Administrator primarily relied upon assessments conducted by other organizations rather than the TSD, which summarizes the conclusions and findings of these other assessments.”

End Results

It appears that the OIG will allow the Endangerment Finding to stand, and is recommending only that EPA revise its procedures for future.   This could be a wrong interpretation, however nowhere in the OIG report is the EPA required to revise or re-issue the missing transparency documents, nor hold a second and independent review by qualified scientists. 

The fact that only procedures were evaluated means that the clearly false statements and conclusions of many of the peer-reviewed papers and documents were considered acceptable by EPA.  As reported earlier on SLB, the EPA accepted such wildly inaccurate statements as glaciers disappearing in the Himalayas.  Also, as the State of Texas wrote in their recent petition, regarding the Climategate emails,  

"[t]he emails do not reflect the work of objective

scientists dispassionately conducting their work and zealously pursuing the truth. Rather

they reveal a cadre of activist scientists colluding and scheming to advance what they

want the science to be—even where the empirical data suggest a different outcome." Also, "to the extent their [these scientists'] objectivity, impartiality, truthfulness, and scientific

integrity are compromised or in doubt, so too is the objectivity, impartiality, truthfulness,

and scientific integrity of the IPCC report, the CRU temperature data, the NOAA

temperature data, and other scientific research that is shown to have relied on their

compromised research."

Texas' petition also shows how the IPCC authors manipulated the climate temperature data, citing the by-now infamous email of using a "trick" to "hide the decline." Also, especially egregious data manipulation is discussed with Russian and New Zealand temperature data. Such manipulation showed undue warming. Also, the IPCC admitted they have lost critical climate data.

Then the real fun begins, with several major discredited claims, using non-peer-reviewed sources. These include Himalayan glaciers receding faster than anyone thought (the aren't). Also, Chinese temperature data was seriously flawed, and had no source documents. They made up the data. Next, the claim that 55 percent of the Netherlands is below sea level, and subject to inundation from sea level rise. This is erroneous, as only 26 percent is below sea level. The fourth and final example included in the Petition for Reconsideration is the wild claim that "up to 40 percent of the Amazonian rain forest could react drastically to even a slight reduction in precipitation." This was from the non-scientific, but wildly agenda-driven World Wildlife Federation, the WWF.

Apparently, these types of "peer-reviewed" scientific conclusions on the impact of man-made CO2 on the planet's climate are acceptable to the US EPA.  

Roger E. Sowell, Esq. 

Marina del Rey, California

Tire Inflation Rule Causes Liability

UPDATE 1, July 3, 2010 -- The tire regulation has been postponed, it is not in effect as of July 1st. There are problems with the wording that require ARB to re-draft the language. -- end update.

Original post begins:

There are numerous problems with the AB 32 tire inflation measure, soon to be law in California. The law goes into effect July 1, 2010. As a result of this ill-considered law, many vehicles will have tire-related accidents, and many lawsuits will be filed. Victims will need an attorney such as Roger Sowell who understands this law, and the issues surrounding tire inflation. The tire inflation law seems simple enough, but there are several problems.

Tires have a target inflation pressure written on the sidewall. Even if the service technician inflates the tire to the pressure from the sidewall, many things can make that the wrong pressure just a few hours later. The wrong pressure can lead to tire failure, causing injury, property damage, and / or death. Two of the things that can go wrong are discussed below.

First, the tire may be hot when the technician adjusts the pressure. A hot tire will have an elevated pressure, if it was properly inflated earlier when the tire was cold. Tires become warm or hot when driven at high speed for an hour or so. The air in the tire also becomes hot. Tires are designed to perform properly at the elevated temperature and pressure, if properly inflated when cold. If the tire is hot when the technician checks the pressure, he may let out some air to bring the pressure down to what is written on the sidewall. Later, when the tire cools down, the pressure will decrease and the tire will be underinflated. The hot tire problem is complicated because it is very difficult to measure the air temperature in a tire. If one could measure the air temperature, a simple correction table can be used to inflate the tire to the correct amount so that when the tire cools down, the pressure will be as written on the sidewall.

For example, if a tire is to be inflated to 32 psi when the tire is cold, or at 70 degrees F, the tire should be inflated to approximately 35 psi if the air temperature in the tire is 100 degrees F.

Second, the compressed air used to inflate the tire may be hot. Hot air flowing into a tire will eventually cool down, and the tire pressure will decrease. Air compressors heat up the compressed air as they run, and the air may remain hot in the storage tank. An air compressor usually has a storage tank, and the smaller the tank, the greater the chance that the air will be hot. This is especially true if the compressed air is used frequently. Only when the air compressor stops running for an hour or two will the air tank cool down. However, the opposite can happen when the air tank has been sitting overnight in the cold ambient air. If the air tank is cool and is at a high pressure, perhaps 80 to 100 pounds per square inch (psi), any air placed into a tire will be much colder due to expansion across a valve. Air auto-refrigerates when it is expanded across a valve. This is known as the Joule-Thomson effect. One can sometimes see this if one blows a small amount of air from the compressed air hose on a humid day. The cold air condenses the water vapor in the air, forming a small fog cloud that dissipates rapidly. If very cold air from auto-refrigeration is placed in the tire and the tire is inflated to proper pressure, the tire pressure will increase when the cold air warms up. Over-inflated tires can be dangerous, can rupture, and can cause accidents.

The legal liability that will result from the California tire inflation law should give all automotive service providers pause. With the record-keeping requirement, an attorney for a plaintiff who has a tire-related auto accident will turn first to the service provider that most recently adjusted their tire pressure. There is no practical and safe way the tire service company can properly inflate the tires, without letting the tires cool down to 70 degrees F, using 70 degree air from a compressor station, and double-checking that the tire gauge is properly calibrated and used properly. Tires do not cool down quickly; they take hours to cool down. The AB 32 tire inflation lawsuits are just waiting to be filed.

Roger E. Sowell, Esq.

Mr. Sowell can be contacted at his legal website.