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« What's up with El Reg? | Main | Real-world efficacies »

Paris and the risk of green judges

@Robin Hutton under CC licence. Click for link.Paris has been and gone and attention has mostly moved on to the latest eccentric claim about what the climate is going to do to us next (intoxicated fish anyone?). But a few outlets are still asking questions. Yesterday Carbon Brief explained that the timetable for ratification is almost impossibly vague:

Countries ...agreed that the deal would come into force when a certain set of conditions had been satisfied — that is, 30 days after at least 55 countries accounting for an estimated 55% of global greenhouse gas emissions have ratified or accepted the agreement...But there is no deadline to say when this job should be completed, which means that countries can delay as long as they want. So, in theory, the first meeting could be in November this year — dumping a heavy workload on the desks of the bodies mentioned above — or it could still be in 2020. It all depends on how keen the big emitters are to put the Paris deal into action.

Meanwhile, Judy Curry points us to this fascinating article by Dutch legal scholar Lucas Bergkamp, who thinks that Paris could eventually become an enabler for the kind of legal action against governments that ClientEarth is promoting in this country and which brought success to the Urgenda campaign group in the Netherlands. Bergkamp is worried because Paris set absurdly ambitious emissions reductions targets, setting governments up to fail pretty much automatically. He thinks that once the failure becomes likely, greens will go to the courts and demand that they step into the breach. And, as Bergkamp explains, this will have consequences:

[The Paris agreement's] implicit reliance on political activism by the climate movement and the related non-hierarchical governance by courts constitute a threat to constitutional government, the rule of law, and representative democracy. It risks an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges that could undermine legislative power and the role of positive law in deciding legal disputes. 


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Reader Comments (29)

Clearly demonstrable that it's all about the money! Once the bloodsucking lawyers get involved, it's pretty much all the evidence one needs! Law: The chief means by which the rich & powerful oppress the poor & powerless. Lawyer: One who can create money from nowhere. (H/T John Brignell).

Jan 21, 2016 at 3:09 PM | Unregistered CommenterAlan the Brit

Some, in the US at least, have said that this is the way medium and long-term government is done these days: Through Judicial rulings and re-interpretations of pre-existing laws, whether they were intended for that purpose or not.

The proponents cite legislative "grid-lock" as a justification for such measures.

An alternative view is that the bulk electorate may actually desire such gridlock because it puts an effective lid on the ambitions of those who wish to rule us and burden us with an ever increasing number of laws. An uncountable and unknowable number of laws to be obeyed, or punished by, seems to benefit nobody in the long-run, except politicians, lawyers and bureaucrats.

But at least, in the US, some of the judges are elected, not merely appointed.

Jan 21, 2016 at 3:21 PM | Unregistered Commentermichael hart

and.............................. after these green lawyers and the judges have straightened out governments, what of the little man?

Alack and sooooooon to be banged up for non belief in the faeries of climate change.

It sounds like, that in future the progressives will determinedly march us all back and back to the golden age of 'before the machines' and by due process at that - HOORAY for progressiveness in action..... Now that is, an extremely frightening image and also is, a wet dream for the legal fraternity/sorority claque and the critical theorists-Cultural Marxists/Communists.

A new governmental post and aux naturellement paying top whack commensurate "wiv wot they git in the proivit sector" - will have to be created - how about the title 'Witch finder General'? Indeed the list of slebs vying for notoriety/pension top up........Emma Thompson, Caroline Lucas, Ed Miliband, Len McCluskey, Ken Livingstone - it could be any - take your pick.

I'll have to go and live on a blasted heath.

Jan 21, 2016 at 3:36 PM | Unregistered CommenterAthelstan.

Lawyers always do well out of new legislation, it's the way they write it.

Jan 21, 2016 at 3:36 PM | Unregistered Commentergolf charlie

Lawyers fill the vacuum when politicians abstain. They don't usurp power.

It takes years for the legal system to come to a definitive verdict. They are even slower than the Legislature.
Thus the laws can be redefined to clarify things before the Judges take over. If the Legislature so wishes.

If the judges near the final decision point and the Government hasn't the will or the unity to overpower them then the judges' interpretation can stand. Someone needs to make the final call between commitments, after all.

But in that case the will of the people is so feeble that it can be swayed by established precedent (tradition) as judged by the lawyers. No loss there.

This isn't mere theorising.
The EU lawyers have said UK prisoners must have the vote. They don't.

Jan 21, 2016 at 3:43 PM | Registered CommenterM Courtney

Having failed to convince the general public, alarmists have already made the turn to the courts, and that will be a major battleground in the climate agenda.

Some background on how courts deal with scientific evidence:

Jan 21, 2016 at 3:57 PM | Unregistered CommenterRon C.

All existing US, UK & EU alarmist politicians are too far gone to change their positions now, so I'd suggest new blood is the answer. Amazingly The Donald may just hold the key to smashing this CC BS. He wins the White House, he instigates a formal enquiry into The Team et al, he secures crushingly incriminating email evidence and from there the US plea-bargain legal system opens the floodgates. Someone high in The Team will be looking at RICO and 30 years unless he squeals like a stuck piggy and finally (but quicker than anyone dare imagine) down it will all come tumbling.

Think of that scene in The Usual Suspects where they hit the corrupt cops taxiing the drug dealer around NYC.

'Two top guys indicted a few days later. Within a few weeks 50 more went down with them. Everyone got it right in the ass from the Chief on down. It was beautiful'.

Jan 21, 2016 at 4:12 PM | Unregistered CommenterCheshireRed

There would be poetic justice if the Global Warming Scam caused damaging fractures within the EU. Both have been very financially rewarding for each other's proponents, and amazingly, some of them are the same people.

Jan 21, 2016 at 4:47 PM | Unregistered Commentergolf charlie

The COP21 agreement gives 192 governments the social license to bypass any domestic or international law in the name of planetary necessity. Economic sanctions are inevitable if the signers stay the course. Consumption will not fall in the first, second or third world voluntarily. So what is left - if CO2 reduction remains essential? Kill someone's economy.

The other way to force decarbonizatiin, of course, is to kill the petro-states. Imagine the geopolitics without oil? The Saudis must be thinking about this. A zero oil import coalition? Well, except for our special friends ....

Jan 21, 2016 at 4:49 PM | Unregistered CommenterDoug Proctor

That sounds like the kind of plan Obama had in mind. He has always been full of Messianic you-know-what, but by-passing the legislature (with the assistance of an incredibly supine legislature, even one nominally opposed to him) really seems to be his default approach. Destroying any legality has been the aim of Alinskyites all along.

Oh, by the way, the charm-free, truth-allergic Hillary was an acolyte of Alinsky. Did she forget to mention that? Did the BBC fail to refer to that, too?

Jan 21, 2016 at 5:39 PM | Unregistered CommenterOwen Morgan

The Tower has an article about foreign funding of political NGOs in Israel. Of concern is the anti-Israel BDS movement, which gets much of its funding from European governments! At least the government recognizes this is a problem, and NGO Monitor is doing research.

Jan 21, 2016 at 5:51 PM | Unregistered CommenterEric Gisin

Bergkamp has legitimate concerns over Urgenda, which is being appealed. But there are, in most western countries, quite a few checks on judicial reach to prevent such outcomes. As an example, in the US, federal court issues of standing and jusidiction caused the greenie lawsuit against EPA by Center for Biological Diversify over ocean acidification (sue and settle strategy) to fail. As another example, one cannot sue (torts) over potential harm, only actual harm. There isn't any. 26 states are suing the EPA on quite solid grounds that its Clean Power Plan regulations are unconstitutional over reach. COP21 expressly does not give anyone standing to sue a country in international courts for failing to meet voluntary commitments.
As the underlying science continues to unravel, Urgenda type outcomes will get ever more problematic.

Jan 21, 2016 at 6:33 PM | Unregistered CommenterRud Istvan

'a threat to constitutional government, the rule of law, and representative democracy'.

UN 'Civil society' ... ...simply poised to step up to the plate.

The UN waits in the wings, continuing its implementation of Agenda 21 at street level and 'The Agenda' (post-2015 millennium development goals) aka. THE 2030 AGENDA FOR SUSTAINABLE DEVELOPMENT.

THE fight against unrepresentative global eco-bureaucratic totalitarianism by 2030 is now ON.

Jan 21, 2016 at 6:44 PM | Unregistered CommenterManfred

Also at Judith's place, I noted that the courts will become main battle-lines as emergent climate culture continues to muscle its way into society, tilting our moral landscape which the law is configured to defend.

Jan 21, 2016 at 7:07 PM | Unregistered CommenterAndy West

That's not a bug, it's a feature ...


Jan 21, 2016 at 7:14 PM | Unregistered CommenterWillis Eschenbach

Willis is right, it's no accident. The assembled politicians could never get a mandate for any of this from their voters, so they've outsourced it to the greens and their judicial enablers.

Jan 21, 2016 at 7:43 PM | Unregistered Commenterrubberduck

It would be interesting to see this list of the top 55% emitters. I'm sure that with China and India within those ranks, what legal chance would activists get within China and India in those home courts, to have that court issue anything with forced direction for action at those same governments. Add Russia and a few others and they all have a good reason then to point fingers at the other guys so that nobody need do anything.
I don't see them ever getting over that 55 bar.

Jan 21, 2016 at 8:28 PM | Unregistered Commentermikegeo

Reassuring to see that Rud Istvan, with his usual wide, and usually wise perspective, believes that the green advance through the judiciary will ultimately fail.

I hope he is right. The breadth and depth of the coalition against us, fuelled by the subtle but all-pervasive belief that the world is a great place, if only the evil of mankind were not desecrating it, and acting through smart but scientifically limited powerful factions now at the centre of all our institutions, continues to grow.

The scientific debate will not be resolved by rational argument, and only a significant and sustained downturn in global temperatures, inconclusive though that may be to the science, will change perceptions sufficiently to halt the march of this frightening army.

Jan 21, 2016 at 8:46 PM | Unregistered Commentermothcatcher

But what else is there to do but fret about the weather?
Like Cavafy’s barbarians Climate Change™ is a kind of solution.

Jan 21, 2016 at 9:06 PM | Unregistered CommenterChris Hanley

Lawyers in this context are like parasites seeking any chink or opening through which to slither and suck the lifeblood of the host. And these are parasites that create the weaknesses to slither through.
The corrupting influence of climate obsession means that small cadres of lawyers can infect the legal profession including judges and legislators.
NGOs have been coddled and enabled to become the monstrous shams that do nothing for the environment and exist to lobby the governments and spin the media news further.

Jan 21, 2016 at 10:15 PM | Unregistered Commenterhunter

What will they serve with the intoxicated fish when the judges sit down to supper ?

A good Scottish white, perhaps ?

Jan 21, 2016 at 10:25 PM | Unregistered CommenterRussell

hunter, the more lawyers there are, the more legislation is required to keep them rich.

Jan 21, 2016 at 10:26 PM | Unregistered Commentergolf charlie

Like CheshireRed, I dearly hope President Trump puts a massive halt to this scam, gets the top dogs prosecuted and kicks the UN out of the US. Forbid any of their emissaries to even step foot back in the country.

Jan 21, 2016 at 10:56 PM | Unregistered CommenterChris F

We'll I can put it from my perspective. Having brought a case through the UN mechanisms to a decision and declaration of non-compliance in International Law, see below, it was interesting to see how the EU Commission deals with it, namely that it is completely above International Law, which doesn't apply to it, even when it has adopted that same international law into its own domestic legal structure.

However, the Irish State and its judiciary are even better. The first Judge, namely the President of High Court did the complete and utter dog on it. He didn't want to deal with it, as after the first few days of the hearing in April 2013 he realised it was really 'too hot to handle'. So he dumped it, said that instead of it being a Judicial Review process it should be a Plenary Summons. What's the difference? (a) It's only in the title block of the papers you file. (b) It enabled him to offload it to one of the other judges, in which the whole procedure would have to be recommenced from scratch, with the same arguments and documentation (only a different title block). (c) As far as he was concerned, he didn't have to write a single word to justify his position or come to an arrangements on the cost issue - that was somebody else's problem, as to who it was offloaded to (or scared away altogether)

So the 'wheel had to be spun again' in March 2015 with all the same arguments. So this time that Judge didn't have a option to offload it to somebody else. However, he came up with a solution. Namely we all turn up every two months or so at the appointed hour and he turns up, sometimes twenty minutes late, and tells us he hasn't finished writing it up yet.

I kid you not, see latest correspondence below:

Finally, I could point out to you the 'defense' of the State, as articulated by their senior consul, an ex Irish Attorney General; "If the State so chooses to breach its International Treaty obligations, then the citizen can complain about it, but that is all the citizen can do". In other words the bottom line is nothing to do with the fact that the State (plus the EU) drove a cart and four through the whole legal framework defining the rights of the citizens, etc. That's a given, it's now proven. The only issue at stake is if I, you or any other citizen has a right to enforce those rights.

So anyhow, stick that in your pipe and chew it; it's an interesting 'real world' story, which has some way to go yet.


Jan 21, 2016 at 11:32 PM | Unregistered CommenterPat Swords

Nice to see you back here, Pat Swords. Like Alex Cull, you're one of the unsung heroes.

Jan 21, 2016 at 11:40 PM | Unregistered Commentermichael hart

Pat Swords,
In 1986 in Australia my team and I managed to get a Federal Court judge to find that a UN plan to inscribe an area on the world heritage list was invalid.
This was appealed by the Federal govt and reversed. We sought leave to appeal to the High Court, but leave was denied.
The overall finding seemed to be that the matter was non-justiciable partly because of its complexity and partly because of possible harm to existing treaties.
For what it is worth, there might be some precedent for relevant Courts to avoid hearing similar future cases. I do not know if it was subsequently overtaken as a precedent.
See 13 FCR 124 of that year Beaumont J et seq Peko Wallsend v. Minister for Environment.
The case is now taught in admin law.
Some Governments seem afraid of opprobrium if they rattle treaties despite Australia having a couple of thousand of them when last I counted. The sit there, largely unused, as a looming menace for a troubled government to use opportunistically.

Jan 22, 2016 at 1:54 AM | Unregistered CommenterGeoff Sherrington

Pat S,
Forgot to add that the Full Fed Court decision, adverse to us, was mainly authored by a judge with credentials of Pres of the Australian Conservation Foundation and Pres of the Environmental Law Assoc of NSW.
We did not know that this type of conflict was to become a worry.

Jan 22, 2016 at 2:08 AM | Unregistered CommenterGeoff Sherrington

@ Pat Swords

I've posted before, you've done some very interesting stuff but you were always going to be buried. Accountability and treason only work one way - up, never down

So the Irish High Court Judge will never finish writing it up. Mark Steyn has the same issue with his stoush with Michael Mann. The DC Judges simply refuse to make a decision

And Brussels simply replies it has no need to comply with any law it does not wish to

As I've likely said before, we the common people have no stake here, no power and no way to rebuke abuse of power. This is where democracy has evolved to ...

Jan 22, 2016 at 4:34 AM | Unregistered Commenterianl8888


Not buried yet, despite the huge obstacles to access to justice in Ireland, I'm not the only one battling this route and while it is a learning curve for all, we are learning rapidly and even to date have successfully slowed down this horrible stupid juggernaut. See below for some very interesting background to the situation here.


Jan 22, 2016 at 12:30 PM | Unregistered CommenterPat Swords

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