The central broad objective of the U.S. constitution is the protection of unpopular individuals and political groups from the whims and passions of the political majority of the moment.
It is curious therefore that the election of prosecutors, in particular that of state Attorneys General, seemingly is accepted as a norm by many despite the perverse incentives created by that path to prosecutorial power.
That voters elect them creates an obvious self-selection process: It is the politically ambitious who are much more likely to seek those offices. (Is there an elected state AG who does not see a governor when looking in the mirror?)
And it is the politically ambitious who have incentives to enhance their political positions through actions strengthening the political coalition in support of their future pursuit of elective office.
In other words, elected AGs seek to satisfy the demands of a majority coalition, creating important and obvious dangers for unpopular political groups. The latest example is the climate lawsuit against the major fossil-fuel producers filed recently by Rhode Island AG Peter F. Kilmartin.
Rhode Island Attorney General Peter Kilmartin announces a lawsuit the state is filing against fossil-fuel companies during a press conference in Narragansett, RI. David DelPoio | The Providence Journal
Like any professional politician aspiring to higher office, Kilmartin transformed this legal action into a major photo opportunity by announcing the litigation at the Narragansett seawall, a famous stretch of the state coastline. His main “scientific” argument is:
“Rhode Island is especially vulnerable to the effects of climate changes that is (sic) now on our doorstep with sea level rise and an increase in severe weather patterns, as seen by the extensive damage caused by storms in the past several years, including Super Storm Sandy and the floods of 2010.”
Where to begin? Global mean sea levels have been rising about 3.3 mm per year as measured by the satellite data beginning in 1979. The Intergovernmental Panel on Climate Change in its 5th Assessment Report estimates that global sea levels as measured by tidal gauges increased about 2 mm per year during the 20th century. (Note that this is not an “acceleration” of sea level rise, as the tidal gauge and satellite data are not comparable.)
So what do the data show for Narragansett? The tidal gauge readings at Newport and Providence for 1930-2015 show an average annual sea level increase of about 2.5 mm, higher than the global average. For 1985-2014, the annual average increase at Newport was 4.2 mm.
If we assume that all of the difference (1.7 mm per year) is due to greenhouse gas emissions — a premise far from obviously correct — then the GHG/sea level “crisis” confronting Rhode Island would be 17 centimeters — 6.7 inches — over the course of a century.
The ice beneath Kilmartin’s feet is no thicker on storms and flooding. The satellite data on cyclones show no trend since satellite observations began in the early 1970s, and accumulated cyclone energy (essentially, an annual index of wind speeds or “destructiveness”) is near its lowest level over these four-plus decades.
Falsities About Flooding
The peer-reviewed literature shows no correlation between flooding and increasing greenhouse gas concentrations for the U.S. Simply mentioning, repeatedly, “Super Storm Sandy” and flooding in a particular year provides no useful information.
Do Kilmartin and his fellow attorneys have systematic evidence that storms, flooding, and other climate phenomena are worsening?
This lawsuit is a blatant attempt to replicate the tobacco lawsuits of the 1990s, which yielded hundreds of billions of dollars of payments to various levels of government and therefore for favored interest groups. Whether the use of tobacco provides individual or social benefits is not of interest here; the use of fossil fuels obviously does, as illustrated by the substantial consumption of fossil fuels by the Rhode Island state government itself.
That reality is one central pillar of Judge William Alsup’s recent decision to dismiss the Oakland and San Francisco climate lawsuits: The appropriate tradeoffs between the benefits and purported adverse effects of energy use are an obvious legislative function, inappropriate for litigation to resolve, particularly given the international nature of the production, consumption, and GHG emissions from fossil fuels.