Time is running out for Oakland and San Francisco politicians who are desperately trying to salvage their failing bid to grab billions of dollars from oil companies, including Exxon, Chevron, BP and Conoco Phillips. Their meritless lawsuit was dismissed and now their case hinges on an appeal.
“If the facts are against you, argue the law. If the law is against you, argue the facts,” Carl Sandburg said. “If the law and the facts are against you, pound the table and yell like hell,” he famously quipped.
Their lawsuit maintains that those companies alone are responsible for climate change that could, they theorize, damage sea walls and swamp sewer systems. As U.S. District Court Judge William Alsup summed it up prior to dismissal, “You’re asking for billions of dollars for something that hasn’t happened yet and may never happen to the extent you’re predicting it will happen.”
That’s a remarkable statement considering the judge is a Clinton appointee in San Francisco.
Absent any legal basis, the municipalities are desperately attempting to “pound the table” to get the dismissal reversed. While they have failed to make their case in court, they have succeeded in getting amicus (or “friend of the court”) briefs filed on their behalf by the usual “who’s who” among activist fringe groups and liberal politicians urging that the case be reinstated, most of whom are in the pockets of leftist billionaires like George Soros and Tom Steyer.
An amicus brief filed by senators Sheldon Whitehouse, Diane Feinstein, Richard Blumenthal, Mazie Hirono, Ed Markey and Kamala Harris argues that the defendants spend a lot of money lobbying Congress to oppose climate change regulation, both directly and through trade associations such as the Chamber of Commerce. Their brief reasons that the court should therefore not accept the defendants’ request to leave climate change to the political branches because defendants, apparently, have been successful with getting their way with the political branches.
The document also rails against energy CEOs flying to Davos on private jets despite the fact that their climate-hawk colleague Sen. Bernie Sanders spent $342,000 on private jet travel since the last presidential election. But the cherry on the hypocrisy cake has to go to Feinstein of the Judge Brett Kavanaugh nomination debacle fame, the only amicus brief signatory who was in the Senate in 1997 when it voted 95-0 on a resolution against the international climate change treaty known as the Kyoto Protocol. Feinstein was one of only five senators who didn’t find the matter important enough to vote on it. This behavior is about as sincere as Senate proponents of the Green New Deal voting “present” instead of voting in favor of it.
Sincerity has never been a strong suit among the plaintiffs. In its lawsuit, Oakland warned of “ongoing and increasingly severe sea level rise,” which is projected to have up to “66 inches of sea level rise by 2100” and flooding damage to sewer systems with a “total replacement cost of between $22 billion and $38 billion.”
But its municipal bond disclosure paints a sharply contrasting rosy picture stating, “The City is unable to predict when seismic events, fires or other natural events, such as sea rise or other impacts of climate change or flooding from a major storm, could occur, when they may occur, and, if any such events occur, whether they will have a material adverse effect on the business operations or financial condition of the City or the local economy.”
San Francisco’s bond disclosure is a near cookie cutter copy of nonchalance while its lawsuit is specific with a dire warning that “nearer-term risks include 0.3 to as much as 0.8 feet of additional sea level rise by 2030” and damage cost estimates of $5 billion.
Olympic medal-worthy hypocrisy aside, the appeal to overturn the dismissal will ultimately center around the question of whether climate change matters should rightfully be decided by one judge’s opinion, or whether federal law prescribes that climate change policy be determined within the halls of Congress and the White House.
All the table pounding in the world will not change the fact that, in 2011 in the 8-0 American Electric Power v. Connecticut decision, the court ruled that corporations cannot be sued for greenhouse gas emissions because the Clean Air Act specifically deposits that regulatory authority into the hands of the Environmental Protection Agency.
The plaintiffs may “yell like hell,” but their hypocrisy cannot only be heard but also seen in how they continue to depend on gasoline and oil in their daily lives. Perhaps they should focus more on reducing their own carbon footprints instead of seeking “jackpot justice” to fill the holes in their poorly managed municipal budgets.