Greens Sue U.S. Government
by John L. Daly
31 August 2002
As of 26th August this year, 2002, two foreign aid agencies of the U.S. Government are being sued by a coalition of three plaintiffs - Greenpeace, Friends of the Earth, and the City of Boulder, Colorado, all three plaintiffs alleging that they "suffer and will suffer the impacts of climate change."
The lawsuit claims that two federal agencies, the Overseas Private Investment Corporation and the Export-Import Bank of the United States, financed and supported fossil fuel developments in foreign countries such as Indonesia, Russia, Chad-Cameroon in West Africa, Venezuela, Mexico and China. The projects included oil field developments, construction of oil pipelines and power plants. The agencies concerned did not actually build these projects but merely helped with loan finance, guarantees and insurance. From this, the plaintiffs make the leap of logic to claim that these agencies are therefore helping to accelerate `climate change' (bureaucratic code for human-induced global warming). Perhaps Greenpeace would prefer the West Africans to build nuclear power plants instead.
The logic of the lawsuit is that developing countries should be condemned to unrelenting poverty, deprived of development capital, simply because they cannot access the kind of energy that the developed world enjoys. It is not only an arrogant position to adopt but is also a kind of environmental imperialism, the third world being made victims to the environmental obsessions of over-indulged pressure groups in the West. Without the assistance provided by these aid agencies, many developing countries would be prevented from developing their own natural resources and thereby freeing themselves from the endless cycle of poverty.
As to how helping to finance wealth-creating projects in developing countries can be violating the law, the plaintiffs make the further leap in legal logic to claim that these investment activities by the aid agencies are in violation of the National Environment Policy Act (NEPA). The very title of this act indicates the extent of its jurisdiction - `National'. The NEPA does not, and was never intended to, extend its jurisdiction outside the borders of the United States and its territories. It would be news to sovereign nations that their economic development choices should be hostage to domestic legislation within the United States. The arrogance of the plaintiffs in seeking to globalise what is a purely national law is an insult to the sovereignty of other nations whose priorities are quite different - such as delivering their own peoples from grinding poverty.
Even if the plaintiffs find some obscure clause in the NEPA to justify extension of its jurisdiction outside the United States, that does not make it legal, since it is axiomatic that any national law passed by any country only extends to that country's borders, no further. `Think globally', the favourite cliché used by environmental groups, has no meaning in law unless the law in question is a truly international one, which the NEPA certainly is not.
The plaintiffs claim that the aid agencies should have made their investment decisions subject to the NEPA, and in not doing so were in breach of that national U.S. law. We have yet to hear from the agencies whether or not they took NEPA into account in their decision-making, but whether they did so or not is irrelevant. Since the projects were overseas, they were clearly outside the NEPA's jurisdiction.
Legislation by Scientific Publication
The plaintiffs made a summary of the 2001 report of the Intergovernmental Panel on Climate Change (IPCC) citing it as the primary reference on the issue of climate change. Yet, in their lawsuit document, they quoted, not the scientific chapters of the IPCC report, but the `Summary for Policymakers', a manifestly political document, not a scientific one.
But whatever the scientific status or otherwise of the IPCC summary, the lawsuit implicitly proposes a radical departure in how laws are established. We are familiar with laws passed by parliaments (or Congress in the case of the U.S.), and by judicial precedent. However, were this lawsuit to succeed, we would see the creation of a whole new process of creating law - legislation by scientific publication. The plaintiffs cite the opinions of the IPCC and other selected scientific sources as constituting a standard of behaviour against which the decisions of non-scientific organisations and non-scientists generally should be judged in law.
In effect, any paper or article published in a recognised scientific journal such as Nature or Science, could acquire legislative status. In other words, the opinions of any scientist in their field of expertise, would, if published in a peer-reviewed journal, acquire the status of law by the back door. The `legislators' in this instance would not be elected representatives or publicly accountable judges, but professional scientists acting with the support of `peer review', a process whereby a paper is judged anonymously by two or three in-house professionals. Such `legislation' would be closed, secretive, and unaccountable to the wider public.
For example, if a nutritional scientist published findings that feeding cow's milk to children was detrimental to their health, then that could be used in any future legal proceeding as prima facie evidence that an act of child abuse had been committed. In other words, a scientific opinion could then become the basis for a new `law' - a law established only because a paper in a scientific journal asserted it.
Imagine how many scientists and journals would react if they knew that their `findings' amounted to new law, simply by being published in a journal. The tongue-in-cheek fable I wrote a few years ago as a Christmas joke (`A Day in the Life of the Scientific Republic of Australia') would cease to be a joke. It would be the ultimate triumph of `scientism', the belief held by many scientists that science should have a monopoly on knowledge and that any knowledge not blessed by science was thereby to be rejected and even outlawed.
A dark future of whole societies controlled by the opinions of an unelected few would dawn upon us, a return to the days of closed medieval priesthoods controlling the lives of the common folk.
The City of Boulder
Of the three plaintiffs, we all know Greenpeace and their contempt for the law when it suits them, their belief that they can act outside the law when they choose to because they are `saving the planet'. Friends of the Earth are a smaller, being led in this case by the more powerful Greenpeace.
But what of the City of Boulder?
Of all the hundreds of small towns and cities in the United States, why is it that only Boulder has chosen to attach its name to this lawsuit? Are they in some way linked to the environmental movement? Do they have some special interest in climate change that other towns and cities do not share?
Here is the temperature record from Boulder, and compared with similar histories from nearby Denver and rural site Cheesman (54 miles south of Boulder). As is clearly evident, climate change is not exactly making headlines in and around Boulder - there's no warming going on there.
At a press briefing to announce the lawsuit, the mayor of Boulder, Will Toor, voiced his concern over `the effect of `climate change' on everything from water resources to destruction of mountain meadow ecosystems near Boulder'. Mountain meadows?
It just so happens that I passed through Boulder on my recent U.S. trip and took some photos of the area. Boulder itself is a medium-sized city of about 100,000 people, sitting on the edge of the great plains just east of the Great Divide of the Rocky Mountains. The main economic activity is government - if indeed that can be called `economic'.
These photos were taken after 5 pm on 25th April, after most of the staff at NCAR had left work for the day. This is also the workplace of many prominent greenhouse scientists and advocates including Tom Wigley, and Kevin Trenberth, all living and working in splendid isolation above the mundane concerns of the City of Boulder far below them.
(In 1999, Tom Wigley, authored a paper titled `The Science of Climate Change' published by the Pew Center on Global Climate Change, a wealthy environmentalist organisation, and did so in his NCAR capacity. In effect, he directly associated NCAR with the environmentalist movement.)
With NCAR dominating this mountain meadow above Boulder, perhaps even owning it, the remarks about the mountain meadow by the Mayor of Boulder suggests NCAR may be a key influence behind Boulder's participation in the lawsuit. There are many government institutions in Boulder, but only NCAR is directly related to climate research, the core issue in this lawsuit.
The question is therefore - to what extent has NCAR influenced the City of Boulder in joining the lawsuit against their own employer - the U.S. government? It is an issue which could well emerge during the court hearing itself.
The Plaintiff's Bogus `Victims'
The plaintiffs cited six individuals as having already been `harmed' by climate change and were facing further harm in the future. Presumably these people will appear as witnesses if the case is ever heard in court. Five of these `victims' are, surprise, surprise, members of Greenpeace and/or Friends of the Earth. One of them was even a Greenpeace employee. It is worth summarising the `harm' that the lawsuit claims they have suffered.
Get the tissues ready because these stories are really heart-rending in their tales of human tragedy.
Dr Phillip Dunstan is a professor of biology at Charleston, and a member of Friends of the Earth. He mostly researches coral and blames alleged degradation of corals on `climate change' (presumably over-fishing and water pollution were not even considered by him). He claims that the loss of coral diminishes his `opportunities for biological research'. How sad.
His principal recreation is scuba diving off the Florida Keys, and he claims climate change is hurting his recreation. Many people in the world are lucky just to eat, but we are expected to feel sorry for Dunstan because his `recreation' is spoiled. And how exactly does Dunstan get to the Florida Keys from Charleston? Perhaps a gas-guzzling SUV? Whatever means he uses to get there, both by road to get to Florida and by boat to get to the reefs, we can be absolutely sure his `recreation' emits more greenhouse gases than most of us do in several months.
Dunstan is also building a home on low-lying land near Charleston and he is worried about sea level rise, so much so, that instead of just selling the property and building on higher ground, he is elevating his house at additional expense, and even bemoans the likely increase in insurance premiums he imagines he will pay due to fear of sea level rise. Tip for Dunstan - U.S. real estate prices are high. Just sell up and build somewhere else. There might even be a handsome profit in doing so.
Pam and Jessie Williford are members of both Greenpeace and Friends of the Earth and are retired, living near Raleigh, North Carolina. They own a block of land on low lying ground and intend to build a house there in a few years. But now they fear sea level rise and claim they would never have bought the land 25 years ago had they known there might be flooding. So now they are faced with spending extra money to make the house flood proof.
Must the government pay `damages' to them? There is a better solution - they could just do the intelligent thing and sell the block for a handsome profit (after 25 years ownership too!) and go build somewhere else.
Arthur and Anne Berndt are farmers in Vermont, producing Maple Syrup. They are both members of Greenpeace and Friends of the Earth. They fear that maple trees might migrate north and leave them with no more maples from which to produce their syrup.
If the maples really did migrate north, the Berndts could always do what other farmers have done since time immemorial when climate shifts and changes in market forces occur - grow something else.
Melanie Duchin is an employee and member of Greenpeace, working in Anchorage, Alaska. She blames local outbreaks of spruce bark beetle on `climate change', something which `harms' her recreational hiking activities in the area. Time for the violins.
But Ms Duchin has the ultimate ace to set her apart as a `victim' of climate change. She does regular trips to the Arctic coast of Alaska for `personal recreation', and intends to do so on an annual basis. Climate change in the Arctic will, she claims, diminish her `recreational and aesthetic enjoyment' of the Arctic.
But think about Ms Duchin's predicament for a moment. She herself is contributing directly to the very climate change she claims hurts her self-indulgent `recreation'. To get from Anchorage to the Arctic and back every year requires transportation - and that runs on fossil fuels, such as aviation fuel. So the very act of her going a thousand miles to the Arctic and then back again every year amounts to a significant emission of greenhouse gases on her part. While she demands the right to consume fossil fuels in an annual recreational trip to the Arctic, she would deny access to such fuels for people in developing countries whose needs would be much more pressing than mere `recreation'.
Perhaps she should sue herself on the very same legal grounds that she is suing the U.S. government.
Will American courts even agree to hear this lawsuit? If they do, the case will be heard in Washington DC, at the very epicentre of the U.S. legal and political system. That's fully in keeping with the Greenpeace strategy of extracting maximum media publicity. For the U.S. courts to allow themselves to become bit players in this political pantomime would only diminish their credibility.
In terms of the case itself, the science underpinning `climate change' is by no means as settled as the plaintiffs seem to imagine. Quite apart from the claims about global warming (the magnitude of which is hotly disputed), the lawsuit bases itself primarily on the alleged impacts this climate change would have. There is no consensus in the scientific community as to what these impacts might be, some even viewing the prospect as beneficial (such as the fertiliser effect of carbon dioxide). Yet the case is based entirely on a claim that the impacts would be both real and universally harmful.
It is to be hoped that this case may provide an opportunity for the claims about global warming and its possible impacts to be tested and cross-examined in a public forum, free from the restraints of in-house peer review and the censorship of dissenting views which goes with it.
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