Encana named in 3 lawsuits by 2 California counties and 1 city claiming damages, that Encana and other companies deliberately presented misinformation about climate change and hindered action to address it

Regina researcher part of new study that shows it’s ‘virtually impossible’ to dispute climate change, New database shows temperature records going back as far as 2,000 years by Stephanie Taylor, CBC News, Jul 16, 2017

A Regina-based researcher is one of nearly 100 scientists hand-picked from around the world to be part of a new study that shows the planet is indeed getting hotter.

David Sauchyn is a senior researcher at the Prairie Adaptation Research Collaborative and professor of geography at the University of Regina.

He’s one of a handful of Canadians whose climate research has been used to create an international database of historical temperature records — some going as far back as 2,000 years — so scientists could have a better idea of what the earth’s natural temperature was before humans started burning fossil fuels.

The major finding? That the planet’s temperature was declining over the last 2,000 years until 150 years ago when that trend did an about-face, and temperatures started rising rapidly.

“It just adds to the large body of scientific facts that confirm, that verify that the climate is warming at an unusual rate,” he said of the study.

“We haven’t discovered anything new, it’s just that we presented such a conclusive set of facts that it’s virtually impossible to argue anything else.”

The database is published on an online journal that allows open access to data deemed important to science. It was created as part of global research initiative on climate trends.

Looking beyond weather

Unlike other studies that use weather to study climate, this one examines climate by looking at natural life, such as mineral or coral growth, or in Sauchyn’s case, the growth of trees.

“All of these natural phenomenon are sensitive to temperature and so we can actually determine what the temperature was when these things were growing 2,000 years ago or 1,000 years ago,” he explained.

He said he was asked to participate because for the past 25 years, he and students have collected wood from across the Prairies.

Climate change database
The 648 sites temperature records were collected from that formed the database. ( A global multiproxy database for temperature reconstructions of the Common Era)

As a result of that work, Sauchyn was able to provide temperature records for two sites in the Canadian Rockies from more than 600 years ago.

The database includes 692 of these temperature records from 648 sites around the world, including oceans.

He said similar studies of this nature have been done in the past, but nothing on this scale.

More data, better conclusions

Sauchyn explained only looking at climate by studying weather leaves a short history.

“Weather stations have only existed around the world since about 1880, so we only have about 140 years of weather data, which to an average person sounds like a lot, but the weather and the climate are much, much older than that.”

Another problem is that’s around the time humans began burning coal and oil.

“We’ve been measuring weather during the period in which humans have been modifying the climate, so by going back 2,000 years we have a record of temperature before humans had such a profound impact on our climate.”

But thanks to the new database, scientists can now have a better understanding of what earth’s climate was doing naturally — well before people were burning fossil fuels.

“The more data, the better because the more solid are your conclusions,” he explained.

Encana named in California climate-related lawsuit, Encana Corp. is one of 20 companies named in three large lawsuits filed in California that attempt to link damages from climate change to industry’s alleged attempts to hinder action to address it by The Canadian Press, July 20, 2017

Calgary-based Encana Corp. is named in three large lawsuits that attempt to link damages from climate change to industry’s alleged attempts to hinder action to address it.

In the latest of a growing number of such lawsuits around the world, Encana is one of 20 energy majors and their subsidiaries facing claims from three California communities. They allege the companies have deliberately sown misinformation and doubt on climate change and are at least partially responsible for related damages such as shoreline erosion.

Encana has not responded to requests for comment.

The lawsuits, filed Monday in California, draw on legal precedents used against tobacco companies, which reached a U.S. settlement of $368.5 billion in 1998.

“The plaintiffs have an uphill battle, but these are plausible claims,” said Michael Burger, director of the Sabin Center for Climate Change Law at Columbia Law School.

Burger said that, like tobacco companies, the energy industry knew its business was creating problems. Reports quoting documents from Exxon’s archives suggest its management was told by its own scientists about greenhouse gases and climate change as early as 1977.

Instead of addressing the problem, the lawsuits allege, industry deployed think tanks, lobbyists and other means to obscure the science and resist regulation — much like the tobacco industry.

… Vic Sher, the lawyer handling the litigation, said fresh reports have made industry attempts to block change much clearer. As well, research now allows scientists to make direct links between greenhouse gases, sea-level rise and individual producers.

“That causal connection we can now tie to particular companies.”

The claim alleges the defendants are collectively behind about 20 per cent of total CO2 emissions between 1965 and 2015.

“It’s an enormous volume and a substantial contribution to the problem,” Sher said.

Martin Olszynski, a University of Calgary law professor who has published research on similarities between climate change and tobacco liability, said the cases are highly relevant to Canada as different court systems try to deal with the issue.

“Everyone’s watching to see what different courts are doing, especially countries that share that common law tradition,” he said. “There’s a cumulative effect — you start to see more and more of these.” [Emphasis added]

Coastal Communities Sue 37 Oil, Gas and Coal Companies Over Climate Change, Similar to the tobacco lawsuits of the 1990s, the California lawsuits argue that the companies failed to warn about dangers from their products by Georgina Gustin, July 18, 2017, Inside Climate News

Two California counties and a city are suing 37 fossil fuel companies, accusing them of knowingly emitting dangerous greenhouse gases that have contributed to global warming that threatens their communities with sea level rise.

It won’t be an easy case to make, legal experts say, but it’s drawing the interest of private attorneys who see enough potential to take it on.

Marin and San Mateo counties, near San Francisco, and the city of Imperial Beach, south of San Diego, filed the new lawsuits in California Superior Court on Monday against Exxon, Shell and 35 other oil, gas and coal companies.

Their lawsuits accuse the companies of having known, for nearly five decades, “that greenhouse gas pollution from their fossil fuel products had a significant impact on the Earth’s climate and sea levels.” They say the companies’ “awareness of the negative implications of their behavior corresponds” with rising greenhouse gas emissions. Together, the lawsuits say, the companies were responsible for roughly 20 percent of total emissions from 1965 to 2015.

The lawsuits contend that the companies “concealed the dangers, sought to undermine public support for greenhouse gas regulation, and engaged in massive campaigns to promote the ever-increasing use of their products at ever greater volumes.” [Oil and gas companies and their enabling regulators/politicians do the same regarding hydraulic fracturing]

The municipalities argue that the companies’ actions amounted to negligence and a public nuisance—and they also contend that the companies failed to warn the public about dangers of their products, among other allegations.

The main trade group representing the oil and gas industries, the American Petroleum Institute, and representatives for Exxon and Shell did not respond on Tuesday to messages seeking comment on the lawsuits.

Claiming “Failure to Warn” and “Design Defect”

The lawsuits are not the first to pursue companies for their greenhouse gas emissions, but they present new twists.

“The public nuisance claims have been made before, though they never reached a resolution,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

“What’s different here is the ‘failure to warn’ and ‘design defect’ claims—they have not been made in regard to climate change yet—and these are claims that rely on a long history of the industry’s knowledge and allegedly deceptive activities,” he said.

While those types of claims are similar to ones made against the tobacco industry, they could be harder to prove.

“There are a number of significant legal hurdles,” Burger said. “They have to show causation.”

“It’s easy enough to say these companies pulled fossil fuel out of the ground,” Burger said. “Proving that these particular emissions that came from these fossil fuel companies led to this particular level of sea level rise and contribute X amount to harms that have happened or will happen—that’s a long chain of causation.”

“At the end of the day, it’s a difficult, but not impossible legal case,” Burger added.

Communities Seeing the Impact of Climate Change

The two counties and city say they’re already seeing the financial impacts of sea level rise, and they expect to continue to see damage to public spaces and infrastructure—including wastewater treatment facilities, roads and beaches—and be forced to spend millions to find ways to adapt to it.

“Sea level rise is harming Imperial Beach and threatening our future,” the city’s mayor, Serge Dedina, said in a statement. “As a low-income coastal community, we have no capacity to pay for the adaptation measures needed to protect ourselves from these impacts. It is unfair to force citizens, business owners and taxpayers to fend for ourselves when the source of the problem is so clear.”

The municipalities are not seeking specific damages and instead are leaving that decision to the courts.

Latest Legal Challenge for Fossil Fuel Industry

The lawsuits add to the legal challenges against some of the fossil fuel majors.

Notably, the attorneys general of Massachusetts and New York have been investigating Exxon over what it told investors about the impacts of fossil fuels on the climate. Those investigations followed two separate investigative series in 2015, first by InsideClimate News and then the Columbia University School of Journalism and Los Angeles Times, into the cutting-edge research on climate change conducted by Exxon as far back as the 1970s and later industry efforts to cast doubt on the science and to delay efforts to cut emissions.

Historically, most of the challenges have been helmed by government attorneys, either for states or municipalities. The lawsuits filed Monday were submitted by private attorneys representing the municipalities rather than government lawyers.

“These are tort lawyers working on this, and that’s different from when you’re looking at state AG’s or municipalities using in-house staff,” Burger said. “What that means is that at least some tort lawyers see this as a potential winner because they’re taking their time and they see an opportunity to win a big case.” [Emphasis added]


 Juliana v. United States

The Youth Climate Lawsuit

Trump lawyers try ‘extraordinary trick’ to quash youth climate case by Megan Darby, June 12, 2017, Climate Home

Representatives of 21 young people suing US government over climate inaction said justice department’s use of rare legal device is ‘offensive to the rule of law’

The US federal government has invoked a rarely used legal tool to try and quash a climate lawsuit brought by 21 young people.

After district court judge Ann Aiken last week stood by her decision that the youth lawsuit deserved a hearing, the Trump administration went over her head to the 9th circuit court of appeals on Friday to get the case dismissed.

The district court committed “multiple and clear errors of law,” according to the government petition. It called for immediate relief from the “staggering burden” of information demanded by the plaintiffs to inform proceedings.

Using its “mandamus [superior] powers”, the circuit court should overrule Aiken and “end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government,” the defendants argued.

Our Children’s Trust, an NGO working on behalf of the youth plaintiffs, countered that the judiciary has equal right to the executive to weigh in on any policy area.

A 2004 supreme court ruling described mandamus as a “drastic and extraordinary remedy” to be used in “only exceptional circumstances”.

In a statement, Our Children’s Trust quoted Douglas Kysar, a Yale law professor not directly involved in the litigation.

“For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself,” said Kysar.

“The writ should not be granted and we should all question why the Trump administration’s lawyers are willing to try such a trick rather than forthrightly defend the case.” [Because Trump is a cowardly bully?]

At stake is the question of whether inadequate climate policy violates the constitutional rights of children and future generations.3

Filed during Barack Obama’s presidency, the case has been inherited by Donald Trump’s justice department, which appointed former coal lobbyist Jeffrey Wood to the defence.

The plaintiffs are calling for a plan to bring carbon dioxide levels in the air back below 350 parts per million, a “safe” threshold breached three decades ago. That remedy would require sucking CO2 out of the atmosphere as well as steep cuts to greenhouse gas emissions.

Victoria Barrett, 18, of White Plains, New York, one of the youth plaintiffs, said: “The US Government is running from some of its youngest constituents, and all we’re asking for is a plan to preserve our future.”1

If the Trump administration cannot get the case dismissed, it is due to go to trial later this year. A public case management conference will take place on Wednesday at the district court in Eugene, Oregon.

Julia Olson, co-lead counsel for the plaintiffs and executive director of Our Children’s Trust, said attempts to stall the court hearing showed the government’s weakness. “If the Trump administration was at all confident it could defend itself at trial, it would be preparing for trial,” she said.

As part of the discovery process, lawyers representing the youth have demanded government records including correspondence with the fossil fuel industry.

Three industry bodies – the American Petroleum Institute, National Association of Manufacturers and the American Fuel & and Petrochemical Manufacturers – intervened in the case to defend their interests, but are now seeking to back out.

“The Trump administration wouldn’t be scrambling to avoid facing us in trial if they were upholding their constitutional duty to protect us,” said Nathan Baring, a 17-year-old plaintiff from Fairbanks, Alaska.

“The public is waking up to the blatant collusion between business and governmental interests at the expense of the people, at the expense of our liberties.”

[Emphasis added]

Federal judge denies Trump administration appeal in youth climate lawsuit, Looks like the historic lawsuit is headed to trial by Natasha Geiling, June 9 2017, Think Progress

A federal judge has denied the Trump administration’s appeal in a climate change lawsuit, paving the way for the unprecedented suit to go to trial.

The case — Juliana v. United States — pits a group of youth climate plaintiffs against the federal government and the fossil fuel industry. The plaintiffs allege that the federal government, through its actions and coordination with the fossil fuel industry, have violated their constitutional right to a livable climate. It is the first climate lawsuit to rely on a version of the public trust doctrine — known as atmospheric trust — to make its case, and adds to a growing number of attempts to force climate action through the judicial branch.
The lawsuit was initially filed in August of 2015, against the Obama administration. The Obama administration, as well as three fossil fuel industry groups as intervenors, all filed motions to have the lawsuit dismissed, which was denied in November by U.S. Federal Judge Ann Aiken. In February, after President Donald Trump was sworn in, the youth plaintiffs filed notice with the court that they would be replacing Obama with Trump.

Children’s climate lawsuit to Donald Trump: See you in court

Following that notice, the Trump administration, again joined by fossil fuel intervenors, filed motions to appeal Aiken’s decision to let the trial move forward.

The administration also argued that an earlier request, which asked the government to retain records of communication with fossil fuel companies about climate change, was overly burdensome.

Earlier this week, the Trump administration filed a notice to the District Court of Oregon, on which Judge Aiken presides, giving the court until June 9 to issue a decision on the appeal. If the court did not issue such a decision, the filing said, the defendants would seek a ruling directly from the Ninth Circuit Court of Appeals — a move that Our Children’s Trust, the organization behind the plaintiff’s suit, called “remarkable.”

In her denial of the appeal, Aiken took a moment to point out the irony in the defendant’s request for an expedited decision, writing that “the government’s belief that it is legally entitled to an immediate ruling on a motion it submitted three months ago is rather ironic given that it waited four months to file the request for interlocutory certification in the first place.”
The Trump administration really doesn’t want this climate lawsuit to go to trial

The denial of the appeal means plaintiffs are one step closer to trial, during which they will seek to prove that the United States government has taken action to harm their right to a livable climate. They will also argue that the government has failed to protect commonly held elements, like the atmosphere, in good condition for future generations — a legal doctrine known as the public trust. The plaintiffs will then ask for science-based climate action by the federal government.
“The more evidence we gather for our case, the more I realize how decisively we can win at trial,” Alex Loznak, a 20-year old youth plaintiff from Oregon, said in a statement. “It’s no wonder the Trump administration wants to avoid the trial by seeking an unwarranted, premature appeal. Today’s ruling brings us one step closer to trial and to winning our lawsuit.”
Aiken’s decision to deny the defendant’s appeal comes just weeks after the three fossil fuel industry intervenors filed motions to withdraw from the case. The motions were filed on the same day that crucial discovery was required in the case, which asked fossil fuel companies to state their positions on climate science.
The court has yet to rule on the intervenors’ motions to withdraw. [Emphasis added]

[Refer also to:

2017 04 26: From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability. Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

2015 06 25: The Hague. A Duty to Protect. “It is also not at all certain, that stricter climate policies will seriously harm our competitive position, or lead to companies leaving…supposed dangers that the State put forward in its defense. But even if this were the case these grounds are insufficient to assume that the Netherlands is not neglecting its duty of care.”

The judge said exactly what we wanted and had the courage and wisdom to say to the government: `You have a duty of care toward your citizens,”‘ said Marjan Minnesma, the director of Urgenda….

National and international celebrations for climate breakthrough


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