As a result of a recent inquiry I made to John O’Sullivan concerning whether or not Al Gore could be legally liable for perpetrating a fraud on the public, O’Sullivan has graciously offered the following guest post:
Prosecuting climate fraud: The international dimension
Guest post by John O’Sullivan
Many international readers have asked where we, the people who oppose carbon legislation, stand in mounting our own legal challenges against policy implementation based on discredited junk climate science. In this article I shall outline the general legal strategies for challenging what is fast becoming recognised as the greatest criminal fraud of all time.
THE INTERNATIONAL DIMENSION AND “COMMON LAW”
What has struck me and many other commentators is the astounding extent and pervasiveness of this climate data fraud. Effectively we are confronting an international Ponzi scheme that has festered within five English-speaking nations; the UK, US, Canada, Australia, New Zealand. All these nations operate under independent legal systems premised on English common law. The basic rights of citizens under common law are explained here.
I argue it is no coincidence that it is these five common law nations that have been targeted for attack from stringent and repressive climate regulations. But investigating that issue would take up a whole article in itself. Being that these five common law nations share a vastly similar judicial system makes matters far easier in elucidating the various avenues that sceptical opponents of these climate capers may pursue.
Common law tells us that governments cannot impose climate regulations on their citizens by regarding similar facts differently on different occasions. This principle is known among legal practitioners as stare decisis (i.e. judges are obliged to obey the set-up precedents established by prior decisions). I’ve examined two of the recently filed climate skeptic petitions filed by U.S. corporations. In both there is the common argument that ‘arbitrary and capricious’ governmental climate-related decisions have been imposed upon the people. These EPA regulations, they argue, must be over turned because the science that underpins them has been proven to be fraudulent and significantly based on subjective elements. Thus, the basis of the EPA’s decision to determine that carbon dioxide is a pollutant is unlawful due to the ‘arbitrary and capricious’ components within the EPA’s fact finding process.
Before anyone may file a legal proceeding they must have a ‘cause of action’ that is explained here.
As litigious-minded skeptics, we are mostly concerned to target our local, regional and national governments as well as hoping to make those errant climatologists individually culpable for their alleged fraudulent conduct. Legal action limits itself to those who can substantiate a personal or class ‘cause of action’ thus you may only sue agencies and individuals that have directly caused you to suffer, or potentially suffer, a future loss, financially, material or in terms of your civil rights.
Below readers can follow the links and examine in greater depth how corporate lawyers have used the evidence gleaned since Climategate and applied it judiciously to make their cases against what they argue is the ‘arbitrary and capricious’ application of EPA policy, which, if proved under the principles of common law would be unlawful.
Thus, to counter the unlawful hubris of a deceitful and amoral minority we may bust this scam in our respective courts in one of two ways:
- Class action lawsuits
- Judicial review and mandamus petition
CORPORATE LAWSUITS LEAD THE WAY
This is a good time to investigate this issue now that 16 ‘Endangerment’ lawsuits were filed against the EPA before the February 17, 2010 deadline.
Some legal experts say the courts are unlikely to block the endangerment finding during any legal challenge. While Patrick Traylor, a partner at the Washington office of Hogan & Hartson says:
“The EPA is on a tightwire without a net with this tailoring rule. There’s a very real risk a court could vacate the rule and a higher-than- normal risk they could stay it.”
In particular, the EPA is using an obscure legal doctrine that basically gives the agency flexibility to craft new rules under existing law. If the agency were to draft new greenhouse-gas rules at the much lower thresholds as stated in the law, the EPA says there would be “absurd” results in terms of the bureaucratic process and potential economic impact.
Under existing case law, particularly the Chevron vs Natural Resources Defense Council decision, federal agencies are subjected to a two-part test, however. The first step is determining whether the statutes are unambiguous.
I strongly recommend anyone contemplating filing their own civil suit to study carefully the evidence and arguments presented in the Peabody Energy Company (PEC) petition and apply the points to their own individual locale and circumstances.
The full 240-page petition can be found here.
Each citizen has the right to challenge an unlawful government agency determination if it can be shown to be ‘arbitrary and capricious’ i.e. not based on fact but on subjective criteria.
I made my own study of PEC the legal challenge earlier this week over at Climategate.com and it is a gold mine for litigants looking for a ready template for a detailed lawsuit to defeat climate regulations.
Here is the far shorter 43-page legal brief of the Coalition requests EPA convene a proceeding for reconsideration.
- Coalition for Responsible Regulation, Inc.
- Industrial Minerals Association – North America
- Great Northern Project Development, L.P.
- National Cattlemen’s Beef Association
- Rosebud Mining Company
- Massey Energy Company, and
- Alpha Natural Resources, Inc.
THE RIGHTS OF AN INDIVIDUAL TO MOUNT A LEGAL CHALLENGE: FILING A ‘MANDAMUS’ PETITION
If you seek to overturn any climate-related regulation imposed on you by your local government authority then I recommend you investigate the most useful legal instrument known for this: the mandamus. The writ of mandamus has long been a prerogative writ in English common law. Individuals in most common law jurisdictions have the statutory right to challenge any decision made by a government agency by way of a mandamus petition. The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right.
For a general explanation of mandamus applicable to all countries that base their legal code on English common law check here.
As someone who litigated for over a decade in New York State I am most familiar with the New York version of mandamus known as an ‘Article 78’ action.
In New York, for example, the filing fees to a court for a petition are around $300. You may also have to pay up to $2-3,000 for a good lawyer to draft one properly for you. Pertinent to this and for anyone looking to take legal action under New York law, you will be interested to know that New York is where NASA’s GISS is located.
But whichever English speaking common law state you live in you are highly likely to have something very similar at your disposal.
CHALLENGING CLIMATE LAWS BY JUDICIAL REVIEW
This is an alternative to a mandamus petition. Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution.
In the United States:
The US Constitution is very robust and pre-empts all state-level laws if there are apparent conflicts in law. Judicial review under federal law may be brought under the Constitution as per Article III whereby a U.S. citizen may invoke an implied cause of action so that a court may determine that a law creates rights that allows private parties to bring a lawsuit against a specific climate regulation. An excellent analysis can be found here as well as here.
Judicial review may be sought via the Supreme Court of Canada that has the power to overturn acts of Parliament if those acts violate the division of powers between the federal and provincial levels of government. For more information see here.
In England and Wales:
A person wronged by an Act of Parliament cannot apply for judicial review except in cases where such regulations may infringe a person’s rights as per the European Law of Human Rights. A challenge against climate regulations will have to be argued on the grounds of Irrationality (i.e. Unreasonableness).
Kathleen E. Foley tells us that judicial review, “ has long been considered an “axiomatic” part of Australia’s legal system.” Foley advises that Australian judicial review is more like that of the England and Wales system rather than the U.S.
CRIMINAL LAW PERSPECTIVE
Certain climate scientists are clearly liable to face charges of ‘Noble Cause Corruption’ that is best explained here.
The unwillingness of the UK government to bring criminal charges against climate fraudsters says more about their own agenda rather than any loopholes in the law or weakness in the evidence. I suspect the governments of Australia, Canada, the US and New Zealand will be equally reticent in prosecuting climate fraudsters.
The pursuit of criminal convictions for fraud and conspiracy to commit fraud cannot be fruitfully pursued by private citizens and effectively resides under the whim of governments. That no criminal charges have thus far been brought against climate science fraudsters at the UK’s Climatic Research Unit, University of East Anglia, despite the British Information Commissioner’s Office (ICO) conceding crimes had been committed, speaks volumes. The British Government have disingenuously stated that the statute of limitations had expired under FOI laws, yet they neglect to act under the Fraud Act (2006) for which no statute of limitations applies when acts of fraud and conspiracy to commit fraud are identified.
Bryan A Garner, Black’s Law Dictionary, p. 980, 8th Ed., St. Paul, USA, 2004.
A.T. Markose: Judicial Control of Administrative Action in India, p.364.
RK Choudhary’s Law of Writs; Mandamus.
Erwin Chemerinsky, Federal Jurisdiction § 6.3 at 382 (4th ed. 2003).
Human rights and judicial review. 1994. http://books.google.com/books?id=N_UjZarvAwYC&pg=PA135&dq=comparative+%22constitutional+review%22&as_brr=3&ei=xI0wSsePE4qsywSNx6GjDg#PPP7,M1. (a comparison of national judicial review doctrines)
The American doctrine of judicial supremacy. 1914. http://books.google.com/books?id=Kev8w1pfnaUC&pg=PA3&dq=judicial+review&ei=3IkwSqG5IZbozATtxNCvDg#PPR5,M1. (this book traces the doctrine’s history in an international/comparative fashion)
John O’Sullivan is a legal advocate and writer who for several years has litigated in government corruption and conspiracy cases in both the US and Britain. Visit his website. He offers his commentary for free and is not funded by any third party. Any opinions he expresses are his own and do not necessarily represent those of the site owner.
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