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As climate lawsuits wind through the courts, concerns arise over the impartiality of the judges

A network of climate activists and environmentalists, who are opposed to fossil fuel use and supportive of renewable energy, are likely training the same judges presiding over the cases.

Published: January 8, 2024 11:00pm

Updated: January 10, 2024 12:19pm

A federal judge in Oregon denied a request from the U.S. Department of Justice to dismiss a climate-change based lawsuit, explaining in her ruling that climate change poses such a dire risk to mankind and the court is “duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused.”

The ruling by U.S. District Court Judge of Oregon Ann Aiken, a Bill Clinton nominee, contains a number of statements that express sympathy with the view that climate change is posing a threat to the human race so great that a judicial response is warranted to address the plaintiffs argument that the government, by allowing and promoting fossil fuel development, is violating their rights.

Climate activists across the country have launched dozens of these cases holding government agencies, oil companies, and industry groups liable for injuries the activists claim to suffer as a result of carbon dioxide emissions from fossil fuels.

Critics worry that the activists are using the court system to enact energy policies they want, which circumvents legislatures where the policies would be voted on by elected officials representing their constituents’ desires. More than that, a network of climate activists and environmentalists, who are opposed to fossil fuel use and supportive of renewable energy, may be training judges presiding over the cases.

Activist training
 
As these lawsuits aimed at stopping fossil fuel production wind through the courts, a nonprofit dedicated to eliminating fossil fuels is training judges nationwide on how to understand the evidence in these cases.

The Climate Judiciary Project, according to Fox News, has crafted 13 curriculum modules and hosted 42 events, with more than 1,700 judges having participated in its activities. The project was created by the Washington, D.C.-based Environmental Law Institute (ELI).

The ELI’s 2022 annual report describes the Climate Judiciary Project (CJP) as a “first-of-its-kind resource that provides the judiciary with reliable, up-to-date information about scientific issues in climate litigation.” According to the ELI website, the goal of the project is to “provide neutral, objective information” on climate science that’s relevant to current and future litigation. The ELI has a program on energy called “Greening Our National Energy Transformation.”

“In the contest among new energy sources, law will have a great deal to say about winners and losers, subsidies and preferences,” the ELI explains on its website, where it lists out a number of ongoing projects dedicated to the promotion of wind and solar energy sources.

Despite all the pro-renewable information on its website, the organization says it’s not trying to influence the outcomes of the many climate suits across the country. “The work of the Climate Judiciary Project is no different than other continuing judicial education organizations that address complex topics, from medicine, to tech, to neuroscience. We provide judges with indisputable, evidence-based scientific curriculum to make informed decisions in cases and support their own jurisprudence,” Nick Collins, spokesperson for ELI, told Just The News.

Collins said the organization is a "nonpartisan environmental nonprofit" with no political or electoral objective.

However, CJP modules contain information that some climate scientists would dispute.

On a module called “The Impacts of Climate Change,” for example, in a section concerning adaptation and resilience, the CJP explains that “the costs of eliminating all flooding impacts across the entirety of the United States would be enormous, exceeding the benefits—and these adaptation costs are increasingly a climate impact in and of themselves.”

The module doesn’t explain what policy scenario would eliminate all risk from flooding. It also doesn’t mention research concerning flood damage costs, which are decreasing and demonstrate that adaptation to flooding impacts has been extremely effective.

Dr. Roger Pielke Jr., professor of environmental studies at the University of Colorado at Boulder, has done extensive peer-reviewed research into the damage costs of natural disasters. Using the latest government data sources and past research that he and his colleagues have done, Pielke found that the annual U.S. flood damage as a proportion of GDP has declined significantly since 1940. A Google search did not find any reference to "pielke" on the ELI website.
 

Judicial response

In her ruling denying the federal government’s request to dismiss, Judge Aiken appeared to side with the plaintiffs out of a concern that energy policies aren’t acting to address climate change. “Lawsuits like this highlight young people’s despair with the drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire emergency,” Aiken wrote.

The ELI didn’t respond to questions about what judges have participated in their training, or if Aiken was among them. Fox News reported that multiple judges have acted as advisers to the CJP including Judge Michael Simon, who is also a judge of the U.S. District Court for the District of Oregon.

Summaries of past events, according to Fox, shows that the CJP has involved judges from the 1st, 2nd, 3rd, 4th and 5th circuits federal Courts of Appeals. Additionally, the group hosted a plenary session with approximately 100 judges at the annual midwinter meeting of the Ninth Circuit in 2019.

The federal government’s motion to dismiss involves a case that began in 2015, when 21 young plaintiffs in Oregon brought a civil rights action against the federal government claiming they are suffering injuries from “the devastation of climate change.” By encouraging and permitting the use of fossil fuels, the plaintiffs argue, the federal government is violating their due process rights to life, liberty and property.

The plaintiffs are represented by lawyers from Our Children’s Trust, a nonprofit that coordinates climate lawsuits by young people across the country. Critics have said the organization is frightening the kids it’s representing with exaggerated and unscientific claims about climate change.

Our Children’s Trust didn’t respond to requests to comment on this story.

In her ruling, Aiken, stated that “The parties do not disagree that the climate crisis threatens our ability to survive on planet Earth. This catastrophe is the great emergency of our time and compels urgent action.”
To support these claims, Aiken cites a book by climate activist David Wallace-Wells, as well as articles in the Washington Post and Vox.

The Intergovernmental Panel on Climate Change (IPCC), a U.N. consortium of the world’s leading scientists, doesn’t support the claim that climate change could make the planet uninhabitable. The IPCC makes projections on future outcomes of policy emissions scenarios with what’s called Shared Socio-Economic Pathways. The five scenarios include a complete commitment to green energy, and one in which fossil fuels are fully developed and utilized. Under all five scenarios, the human race is better off economically in 100 years than it is today, and under no scenario is the survivability of the species threatened by global warming.

Dr. Matthew Wielicki, former assistant professor in the Department of Geological Sciences at the University of Alabama and author of “Irrational Fear,” told Just The News that he’s not aware that anywhere in the IPCC literature that extinction is considered a plausible outcome of climate change. “In fact, the human species has faced extinction before, but primarily during cold periods — for example, 900,000 years ago when it’s estimated that the species was reduced to a few thousand individuals,” as a result of global cooling, Wielicki said.

He added that the historic record also shows that the species thrives most during warmer periods. A 2021 study in the medical journal The Lancet found that 600,000 people die globally from heat, but 4.5 million die from cold.

Additionally, according to the nonpartisan International Disaster Database, the number of deaths from climate-related natural disasters has fallen approximately 99% since 1920, meaning people living today have the least chance of dying in such a disaster than any previous generation.

Requests for comment that were sent to Aiken’s courtroom deputy went unanswered, including if she ever participated in CJP training or if she is aware that the IPCC would dispute her claims that climate change poses a threat to human survivability.