Judge Should Not Have Deferred to Congress, Executive Branch in Fossil-Fuel Climate Case
By Elliott Negin
On Monday, a federal judge dismissed a lawsuit by San Francisco and Oakland against the five biggest privately owned oil companies for climate change-related damages. Why? He believes the problem is too big to be decided by the federal courts and that Congress and the administration should take care of it.
Fat chance of that happening anytime soon, and the courts are at least partly to blame.
In his ruling, U.S. District Judge William Alsup agreed with the plaintiffs that there is a "vast [scientific] consensus that the combustion of fossil fuels has … materially increased carbon dioxide levels," which has driven up average global temperatures and raised sea levels. Likewise, he noted that the oil companies "have allegedly long known the threat fossil fuels pose to the global climate," but nonetheless funded public relations campaigns that "downplayed the risks" and disparaged climate scientists.
At the same time, however, Alsup insisted that environmental harms attributed to burning fossil fuels have to be balanced with the fact that "the industrial revolution and the development of our modern world has literally been fueled by oil and coal."
"Having reaped the benefit of that historic progress," he wrote, "would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?"
The answer to the second part of the question is emphatically yes (and it doesn't require ignoring our own responsibility).
The Oil Companies Knew
Alsup is of course correct that industrialization would not have happened without fossil fuels. But he neglects to take into account the pernicious role the defendants—BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell—have played to block government action to curb carbon emissions over the last three decades. If the U.S. and other industrialized nations had begun the necessary transition to low- and no-carbon energy back then, the likely consequences of climate change would be significantly less dire.
Rising sea levels alone will wreak havoc along the California coast. San Francisco, Oakland and six other California jurisdictions that have filed similar climate lawsuits can expect accelerating sea level rise to threaten some 8,800 homes by 2045, representing $76 million annually in today's local property taxes, according to a recent analysis by the Union of Concerned Scientists. By the end of the century, some 52,000 homes that currently contribute $435 million in annual property taxes will be at risk.
As Alsup pointed out in his ruling, the alarm bells about climate change began ringing in the late 1980s. Thirty years ago—on June 23, 1988, to be precise—NASA scientist James Hansen generated front page news when he warned Congress about higher temperatures and rising seas. That same year, the United Nations convened the Intergovernmental Panel on Climate Change (IPCC).
A year later, 50 corporations and trade groups founded the Global Climate Coalition (GCC) to discredit climate science. Its charter members included none other than British Petroleum (now BP), Chevron, Exxon, Mobil and Shell.
Until it disbanded in 2002, the GCC conducted a multimillion-dollar lobbying and public relations campaign to undermine national and international efforts to address global warming. One of its fact sheets for legislators and journalists encapsulated its main talking points, disingenuously claiming that "the role of greenhouse gases in climate change is not well understood" and that "scientists differ" on the issue.
Thanks to a leaked internal GCC memo from 1995, we now know that the coalition's own scientific and technical experts were telling its members that greenhouse gases were indeed causing global warming. "The scientific basis for the Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as CO2 on climate is well established," the document stated, "and cannot be denied."
Exxon scientists, meanwhile, were aware of the threat posed by fossil fuels as early as 1977, according to a 2015 investigation by InsideClimate News. Nevertheless, the company purposely chose to emphasize "uncertainty" and, since it merged with Mobil in 1999, it has spent tens of millions of dollars on a climate disinformation campaign that continues to this day.
Courts Need to Take Responsibility
Alsup concluded that the courts are not the proper venue to address climate damages. Given the U.S. Supreme Court has ruled that the U.S. Environmental Protection Agency has the authority to regulate greenhouse gas emissions under the Clean Air Act, Alsup contends the issue is best left to Congress and the administration to handle.
Alsup's conclusion presents us with a Catch-22. Kicking any decision about curbing global warming emissions to the political branches of government ignores the fact that both Congress and the current administration are tightly tied to the coal, oil and gas industries. And that hand-in-glove relationship is largely due to questionable Supreme Court decisions.
The genesis of our predicament can be traced back to the early 1800s. Since then, the Supreme Court has issued a series of rulings that have granted corporations the same rights as people. More recently, in 1976, it ruled that limits on campaign contributions violate the First Amendment, essentially equating money with free speech. And in the 2010 Citizens United case, the court ruled that the government cannot limit a corporation's independent political donations.
These decisions have enabled the fossil fuel industry to exert undue influence over federal energy policy. Not only have coal, oil and gas companies collectively spent tens—if not hundreds—of millions of dollars over the past few decades to manufacture doubt about the reality and seriousness of climate change, they have spent considerably more on campaign contributions and lobbying to stymie efforts on Capitol Hill to combat climate change.
In the 2015-16 election cycle alone, for example, the five defendants in the San Francisco-Oakland climate case together spent $9.8 million on federal candidates and another $58.3 million to lobby Congress and the administration, according to government data collected by the Center for Responsive Politics.
Our three-branch system of government ostensibly rests on the concept of checks and balances. When Congress and the executive branch are hopelessly corrupted by petrodollars, it is incumbent upon the judiciary to compensate for this imbalance, which utterly fails to serve the public interest.
Fortunately, Judge Alsup's ruling is not the last word. Similar climate-damage lawsuits have been filed by cities and counties in California, Colorado, New York and Washington state.
A recent press statement by Union of Concerned Scientists President Ken Kimmell puts these lawsuits into perspective.
"In almost all large-impact litigation, the courtroom doors are usually shut in the beginning, but if plaintiffs are persistent and keep knocking, the doors will open up," said Kimmell, an attorney and former head of the Massachusetts Department of Environmental Protection. "This was true in the fights against Jim Crow and Big Tobacco, and we expect that the same tenacity will be necessary to overcome the entrenched political and economic influence of this deep-pocketed industry."
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Human actions have taken a steep toll on whales and dolphins. Some studies estimate that small whale abundance, which includes dolphins, has fallen 87% since 1980 and thousands of whales die from rope entanglement annually. But humans also cause less obvious harm. Researchers have found changes in the stress levels, reproductive health and respiratory health of these animals, but this valuable data is extremely hard to collect.
Researchers work with trained dolphins to learn more about their sensory abilities, seen here testing a dolphin's hearing. Jason Bruck / CC BY-ND
A Lot to Learn From Hormones<p>When sampling the blow, we are looking for hormones in mucus as these can be used to gauge psychological and physiological health. We are specifically interested in <a href="https://dx.doi.org/10.1371%2Fjournal.pone.0114062" target="_blank">hormones like cortisol</a> and <a href="https://doi.org/10.1016/j.ygcen.2018.04.003" target="_blank">progesterone</a>, which indicate stress levels and reproductive ability respectively, but can also help determine overall health.</p><p>Additionally, blow samples can detect <a href="https://dx.doi.org/10.1128%2FmSystems.00119-17" target="_blank">respiratory pathogens</a> in the lungs or nasal passages - blowholes evolved from noses after all.</p><p>This health analysis is especially important in areas with oil spills as the chemicals can cause hormonal problems that harm <a href="https://www.carmmha.org/investigating-how-oil-spills-affect-dolphins-and-whales/" target="_blank">development, metabolism and reproduction</a> in dolphins.</p><p>Hormone samples can provide scientists with valuable data, but collecting them from intelligent and unpredictable animals is challenging.</p>
Cetacean Collaborators<p>To build a drone that can stealthily collect spray from moving dolphins, we needed more data on their eyesight and hearing, and this is data that couldn't be collected in the wild nor simulated in a lab.</p><p>We worked with dolphins at facilities like Dolphin Quest in Bermuda, which provides guests opportunities to learn about dolphins while allowing <a href="https://dolphinquest.com/about-us/our-story/" target="_blank">scientists access to animals for noninvasive research</a>. Here the dolphins can swim away if they choose not to work with us, so we had to design the study like a game; the way a kindergarten teacher entertains a class. If the dolphins aren't interested, we don't get to do the science.</p><p>Over the course of hundreds of sessions, we sought to answer two questions: What can dolphins hear and what can they see around their heads?</p><p>To test dolphin hearing, we set up microphones and cameras to record dolphin behavior as we played drone noise in the air. We analyzed the responses to each noise – such as how many dolphins looked at the speaker – and used these as a proxy for their ability to hear the sounds.</p>
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="5f31daf07a652b8d64a093b993ee4e96"><iframe lazy-loadable="true" src="https://www.youtube.com/embed/UjmQeH3vXHI?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
Robodolphin doesn't look like a real dolphin, but it doesn't need to in order to train our drone pilots. C.J. Barton / Oklahoma State University / CC BY-ND<p>To build robodolphin, we worked with dolphins trained to "chuff" or sneeze on command to measure spray characteristics. We used high-speed photography to see the dolphins' breath as it moved through the air. Then we conducted high resolution CT scans of a dolphin head and 3D-printed a replica of a nasal passage.</p><p>Now, we have a complete robodolphin and are tweaking its sprays to be nearly identical to the real thing. This will allow us to determine how close we need to get to collect the samples, and therefore, how quiet our drone needs to be.</p>
The replica dolphin blowhole was designed from a scan of a real blowhole passage, and the spray it produces closely matches the real thing. Alvin Ngo, Mitch Ford and CJ Barton / Oklahoma State University / CC BY-ND
A Bit of Practice, Then Into the Wild<p>In the next few months, we will test flights over robodolphin with existing drones to determine the timing and strategy for collection. From there, we will fabricate a low-noise drone that can fly fast enough and with sufficient maneuverability to capture samples from wild dolphins. Like a video game, we will use the visual field data to develop approach trajectories to stay in the visual blindspots.</p><p>We plan to test our drones on a truck-mounted robodolphin moving down a runway, then using a boat to simulate realistic conditions. The next steps will involve ocean testing with dolphins trained for open ocean swimming. These tests will determine if our devices can catch and hold the hormones as the drone flies back to a researcher's boat.</p><p>Finally, we will deploy the system to collect data on wild dolphins. Our first goal is to test resident dolphins – animals that live on the coasts and deal directly with boat and oil industry noise – which will allow us to learn more about stress resulting from human impacts.</p><p>Those samples are a way off, but if all goes well we will have a specially built drone capable of flying long distances and capturing samples undetected in a few years. The samples collected will allow researchers to do better science with impact on the animals they study.</p>
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Environmental and Health Hazard<p>Experts say e-waste, which is now the world's fastest-growing domestic waste stream, poses serious environmental and health risks.</p><p>Simply throwing away electronic items without ensuring they get properly recycled leads to the loss of key materials such as iron, copper and gold, which can otherwise be recovered and used as primary raw materials to make new equipment, thereby reducing greenhouse gas emissions from extraction and refinement of raw materials.</p><p>Refrigerants found in electronic equipment such as fridge and air conditioners also contribute to global warming. A total of 98 Mt of CO2-equivalents, or about 0.3% of global energy-related emissions, were released into the atmosphere in 2019 from discarded refrigerators and ACs that were not recycled properly, the report said.</p><p>E-waste contains several toxic additives or hazardous substances, such as mercury and brominated flame retardants (BFR), and simply burning it or throwing it away could lead to serious health issues. Several studies have linked unregulated recycling of e-waste to adverse birth outcomes like stillbirth and premature birth, damages to the human brain or nervous system and in some cases hearing loss and heart troubles.</p><p>"Informal and improper e-waste recycling is a major emerging hazard silently affecting our health and that of future generations. One in four children are dying from avoidable environmental exposures," said Maria Neira, director of the Environment, Climate Change and Health Department at the World Health Organization. "One in four children could be saved, if we take action to protect their health and ensure a safe environment."</p>
Europe Leads the Way<p>While most of the e-waste was generated in Asia (24.9 Mt) in 2019, Europe led the charts on a per person basis with 16.2 kg per capita, the report said.</p><p>But the continent also recorded the <a href="https://www.dw.com/en/the-eu-declares-war-on-e-waste/a-51108790" target="_blank">highest documented formal e-waste collection and recycling</a> rate at 42.5%, still below its target of 65%. Europe was well ahead of the others on this front. Asia ranked second with 11.7%.</p><p>The authors said while more that 70% of the world's population was covered by some form of e-waste policy or laws, not much was being done toward implementation and enforcement of the regulations to encourage the take-up of a collection and recycling infrastructure due to lack of investment and political motivation.</p><p>"You have to think about new economic systems," said Kühr.</p><p>One approach could be that consumers no longer buy the products, but only the service they offer. The device would remain the property of the maker, who would then have an interest in offering his customers the best service and the necessary equipment. The maker would also be interested in designing his products in such a way that they are easier to repair and easier to recycle, Kühr said.</p>
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