War on Fossil Fuels Reaches Court of Appeals

By Steve Haner

A climate alarmism publicity stunt masquerading as serious litigation had a hearing in front of the Virginia Court of Appeals on Monday, seeking to revive its rejected petition to shut down the fossil fuel industry in Virginia. Why? Because some of the plaintiffs suffered from heat exhaustion while exercising on summer days, and two of them got Lyme Disease after tick bites.

The suit was last discussed on Bacon’s Rebellion when it was filed in 2022. Later that year a Richmond City Circuit Court judge accepted the state’s motion to dismiss it on summary judgement, citing the doctrine of sovereign immunity. It was an appeal of that dismissal which was before a panel of the appeals judges, covered only by Brad Kutner of Radio IQ.

The appeals court is being asked to reinstate the case, which is seeking aggressive if poorly defined relief. Basically, the original petition seeks to repeal Virginia’s Gas and Oil Act and reverse long-standing policy decisions in favor of developing energy resources. It seeks to prevent the state regulatory agencies from allowing any new fossil fuel infrastructure of any kind, presumably from pipelines to coal mines to gas stations to power plants.

The stages and pleadings of the Virginia case are documented by a website tracking it and a handful of similar cases around the nation, with the same basic arguments and a common set of lawyers. So far, the plaintiffs have seen some initial success only in Montana and Hawaii. Their federal level suit is being actively opposed by the Biden Department of Justice.

The anonymous Virginia teenagers recruited as plaintiffs here allege their health has already been damaged by a changing climate they attribute to fossil fuel emissions, an assertion long on assumptions but devoid of experiment-based truth. It was in the petition for the appeal that the lawyers cited the young woman who suffered after “walking around her neighborhood on an unseasonably warm day.” Another suffered nausea during a summer soccer match.

Whether her teammates were stricken or not and whether the game continued are not mentioned. Her alleged distress is enough to shut down the entire energy industry in this state.

Other plaintiffs complain how lack of rain has damaged fruit crops on the family farm, which begs for a judicial inquiry as to how those crops are going to do as 2024 is so far proving extremely wet. The ability to cause both droughts and heavy rain is among climate change’s most magical of powers. The whole section seeking to establish actual harm is comedy.

“This looming existential crisis, and the trauma of the physical injuries Plaintiffs have experienced, manifests in unprecedented levels of stress, depression, anxiety, and PTSD,” the petition continues.

There is not a single weather condition or hazard mentioned that wasn’t also common to Virginia a century ago, two centuries ago, long before CO2 concentrations reached late 20th century levels. Who did the starving colonists in Jamestown get to sue? It is the climate crisis movement itself, and irresponsible media and education messaging, responsible for such stresses (if they exist).

None of these dicta, of course, address the sovereign immunity issue, but its extensive inclusion illustrates that spreading the hype is the only actual goal of this exercise. The legal hook for the case is Article XI of the Constitution of Virginia, which includes the following:

…it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.

Given its equal focus on development and use of resources, it doesn’t seem that helpful to their complaint. They then try to treat the second sentence as an individual right, like freedom of speech, and assert they have the right to sue and seek relief under Article I, Section 11. That only guarantees due process and cites specific cases where it can apply, and the rest of the Bill of Rights makes no  mention of environmental issues.

The state’s appellate brief, signed by Attorney General Jason Miyares and his senior staff, opens with:

Plaintiffs should present their arguments to the General Assembly; they do not belong in court. Plaintiffs demand sweeping changes to the Commonwealth’s energy and environmental policies. But “it is the responsibility of the legislature, not the judiciary, to formulate public policy, to strike the appropriate balance between competing interests, and to devise standards.” Wood v. Bd. of Supervisors, 236 Va. 104, 115

This just appeared, so is not before the court in the record, but any doubt that the General Assembly as now constituted is willing to consider these issues is dispelled by this account of the 2024 Assembly’s numerous “climate” bills in Virginia Mercury. Of course, like the plaintiffs, advocate Ivy Main is complaining even the legislature’s majority Democrats are refusing to Save the World to her satisfaction.

Under the doctrine of sovereign immunity, hardly unique to Virginia, the state can only be sued by its own citizens in those cases where the General Assembly has waived that defense. This is not one of those instances, the Attorney General’s Office argued.

Publicity is what this case seeks more than anything (although note donations are also being solicited on that website), and here Bacon’s Rebellion has provided it. But the utter absurdity that one child overcome by heat in a soccer game or bitten by a deer tick is sufficient grounds to destroy our economy needs to be exposed. That is the entire climate crisis movement in a nutshell.