As you are undoubtedly aware, today’s environmental movement has become almost entirely fixated on the effort to stave off “climate change” by having governments impose restrictions on the use of fossil fuels. But, despite what is now a few decades of end-of-days hysteria designed to force political action on the issue, the political process, both here and in most foreign countries, has led to the adoption of remarkably few of the restrictions sought by the activists. And even with a few restrictions imposed here and there (California, anyone?), total usage of fossil fuels continues to increase rapidly worldwide, most particularly in third-world countries that are still in the early phases of building out their electrical systems.
What is an environmental activist to do? Outside the United States, activists rarely have much in the way of alternative avenues to follow in their quest to block fossil fuel development. But here in the U.S., we have our nearly-infinitely-complex legal system, with fifty independent state court systems and 94 different federal district courts to look to — not to mention places like Puerto Rico and Guam if you want to get really clever — and endless statutes and common law theories, plus of course the Constitution itself, to support some kind of cause of action. If your goal is to block some project or development, somewhere out there there must be a theory to throw out and a judge who will give you an injunction for something. You just need to be creative, and to find the right judge. Go for it!
And thus we find that pretty much every project that anyone tries to get off the ground that involves fossil fuels in any way draws a lawsuit — or maybe two or five — seeking to block it. And then, many such projects — and perhaps most of them — get blocked, at least to the degree that some court issues an injunction of some kind. But here’s the remarkable thing: the forces of capitalism have tremendous creativity in getting around these things and going right on producing and transporting the fossil fuels. Is the flood of litigation actually having a meaningful effect? It is certainly driving up costs, but in terms of reducing the availability of the energy, I haven’t seen it.
If you want to look at a case to teach you the basics of how this game is played, you would be hard-pressed to find a better example than the recently-decided litigation over the Keystone XL pipeline. Let’s take a tour through the facts of that situation. . . .Read More