CO2 Was Framed!

Written by Carl Brehmer


To frame:

Verb, informal

“produce false evidence against an innocent person [or an odorless, tasteless, invisible atmospheric gas that is essential for plant growth] so that they appear guilty: ‘he claims he was framed’”

In 2007 Carbon dioxide (CO2) was given a show trial and found to be “guilty” even though the litigants had no standing and the evidence was, in the words of Chief Justice Roberts in his dissenting opinion, “pure conjecture”.

Guilty of what you ask?   “Massachusetts had lost some of its coastal land, an injury that is expected to worsen over the course of the next century,” Mass. v EPA (2007).  That’s it.  That is the totality of the actual, hard “evidence” that was presented at trial that the CO2 emitted by the burning of hydrocarbons is causing an “injury” to “public health and welfare” and can therefore be classified as a “pollutant” under the Clean Air Act.

Please note that the Mass v EPA decision did not name as “injuries” anything else that rising CO2 levels are being accused of—more floods, more droughts, more snow, less snow, more tornadoes, more hurricanes, food shortages, species extinction, etc., etc., etc.  Why?  Courts rely on actual, hard “evidence” and not just conjecture and speculation.  As we will see even the “evidence” that rising CO2 levels are causing some loss of Massachusetts’ coastal lands is wholly unconvincing to an unbiased observer.

The argument presented to the court was this:  CO2 causes global warming and that global warming is causing vestigial glaciers around the world to melt and that melt water is making the world’s oceans deeper and Massachusetts landowners have already lost some beachfront property because its coastline is sinking into the Atlantic Ocean and if the coastline continues to sink at its current rate Boston will be under water in ~25,000 years!

“The Court went on to find that Massachusetts had suffered injury due to global warming. Because global warming had caused sea levels to rise, Massachusetts had lost some of its coastal land, an injury that is expected to worsen over the course of the next century.  Moreover, the Commonwealth ‘owns a substantial portion of the state’s coastal property.’”  Mass. v EPA (2007)

Let me point out the two deceptions present in this statement.  Deception #1: Even though studies show that sea levels continue to rise at a very slow level (1-2mm/year), the coastline of Massachusetts is also sinking.  That is, it is undergoing what is called “subsidence” “the gradual caving in or sinking of an area of land” not unlike what happened to New Orleans, which caused it to sink below sea-level, albeit at a much slower rate and that loss of coastal land is being blamed on “sea-level rise”, which is being blamed on “global warming”, which is being blamed on CO2.

In the paper Kirshen, et al 2008 we read:

 “. . . in coastal Boston in the northeastern United States (USA), land subsidence is estimated to have been 1.5 mm/year (Nucci Vine Associates, Inc. 1992). An estimate of 2 mm/year for historical subsidence in Revere, nearby to the north of Boston, was reported in Clark et al. (1998).” 

A natural consequence of land subsidence, of course, is the gradual loss of “coastal land” as it sinks into the sea.  This reality led Chief Justice Roberts in his dissenting opinion to write:

 “. . . aside from a single conclusory statement, there is nothing in petitioners’ 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.” Mass. v EPA (2007)

Deception #2: Are rising CO2 levels causing the continuing rise in sea levels that have been rising for 15,000 years?  The fact is, sea-levels have been rising for the past 15,000 years since the end of the last Great Ice Age and the land mass that is now called Massachusetts has been losing “coastal lands” to the Atlantic Ocean for 15 millennia.  At first this rise was very rapid but slowed significantly to its current rate about 9,000 years ago and has remained relatively stable since then.  There is even a debate among scientists about whether or not sea-levels are dropping due to the fact that the size of the Antarctic Ice Cap is growing, but I digress.

Let me emphasis that the 1-2mm/year rate of sea-level rise mentioned above is based on actual tidal gauge readings while the predictions of eminent, “catastrophic” sea level rise have all emerged from computer models—the usual suspects.


Credit: Image by Robert A. Rohde from Global Warming Art.

Take note that during this entire 15,000-year period there was no indication that the sea-level rise was being caused by rising levels of atmospheric CO2, e.g., there was no abrupt rise in CO2 levels 15,000 years ago that prompted the rapid melting of glaciers, which continues to this day albeit at a much slower rate.  The only documented, historical relationship that has been shown to exist between rising temperatures and rising CO2 levels has been this.

Historical increases in atmospheric CO2 levels have followed increases in temperature because of a well-known phenomenon that is taught in high-school chemistry.   Gases, such as CO2, are less soluble in warmer water and therefore CO2 dissolved in ocean water outgases when the oceans warm.  Even the increase in CO2 over the past century has been demonstrated to be primarily a natural response to the slight warming that has occurred rather than having been produced by human activity.

In spite of these well-known scientific truths, the litigants in the Mass v EPA (2007) case somehow convinced five of the Supreme Court justices that in the late 20th century the laws of physics changed and that the sea-level rise suddenly switched from being caused by “whatever was causing it before” to now being caused by CO2 but not just any CO2.  They argued that it was the 3% of the atmospheric CO2 that human beings add to the air through the burning of hydrocarbons that is causing the sea-level rise, because that is what they were suing over.  They were not suing over the 97% (~388 ppm) of the atmospheric CO2 that has come from non-human sources.  It is not the CO2 from non-human sources that is causing the sea-levels to rise they contend; no, it is the 3%, the ~12 ppm anthropogenic contribution to atmospheric CO2 that is causing the sea-level to rise.

Let me repeat.  Of the total amount of CO2 that is in the atmosphere only 3% of it can be traced to the burning of hydrocarbons.  Ergo, any action that the EPA might take to limit atmospheric CO2 could/can only affect that 3%, which is ~12 ppm.  Thus the litigants were arguing that somehow it was just this anthropogenic ~12 ppm of CO2 that has become the cause of the continuing 1-2mm/year sea level rise, even though for the past 9,000 years the sea-level has been rising 1-2mm/year without elevated levels of CO2 in the atmosphere!  Since this rise in the Atlantic sea-level is slowly reclaiming the coastline of Massachusetts they argue that the EPA is responsible for this loss of acreage because they failed to severely limit the amount of CO2 being emitted from new motor-vehicles in the USA!

But wait; it gets worse!  Take note that the law suit against the EPA was not to control/reduce the total amount of human produced CO2 in the world but only that which is emitted by motor-vehicles in the USA, which is only ~4% of the total amount of anthropogenic CO2 emitted globally.  So, in reality the litigants were suing the EPA over the ~0.5 ppm of the atmosphere’s CO2 that is being put there by motor-vehicles in the USA on the premise that reducing this ~0.5 ppm of CO2 to some lower number would stop the Atlantic Ocean’s encroachment on the Massachusetts coastline.

But wait; it gets worse!  Take note that the court ruling was only based on CO2 emissions from new vehicles!

“The Court next found that greenhouse gas emissions from new motor vehicles cause or contribute to the Commonwealth’s injury.” Mass. v EPA (2007)

(Remember, the “injury” being claimed is the fact that the Massachusetts coastline is sinking into the Atlantic Ocean!)  The “endangerment finding” was not therefore based on any of the CO2 that older motor-vehicles emit but instead only on the CO2 that “new motor-vehicles” emit and only in the USA.  This drops the level of anthropogenic CO2 over which Massachusetts was suing the EPA down to some small fraction of 0.5 ppm!

Thankfully not everyone on the Supreme Court is scientifically illiterate.  Chief Justice Roberts thus wrote in his dissenting opinion:

 “Petitioners are never able to trace their alleged injuries [the loss of Massachusetts coastal land] back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury—the loss of Massachusetts coastal land—the connection is far too speculative to establish causation . . .  The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land.” Mass. v EPA (2007)

But wait; it gets worse! Based on the above reality, no action that the EPA can take to impose higher Fuel Economy Standards on new motor-vehicles in the USA will have a measurable effect on atmospheric CO2 levels globally even if rising CO2 levels were causing the sea-level to rise in the first place.  In legalize, the law suit offered the litigants no expectation of a “redressability”.  Redressability: “It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.” wikipedia  In plain language, the Mass v EPA (2007) law suit was completely without merit because the EPA cannot 1) stop the Massachusetts’ coastline from sinking further into the Atlantic Ocean nor can it 2) prevent the sea-level from rising further by imposing higher CAFE standards on new motor-vehicles in the USA, which was the totality of the law suit.

But wait; it gets worse!  The result of this spurious lawsuit was not simply the imposition of higher CAFE standards of new motor-vehicles; it was the proverbial “camel’s nose under the tent” in that it provided the legal cover for the EPA to go rogue under the direction of the Executive Branch who wrote the Clean Power Plan, which commits to reducing CO2 emissions from power plants to 32% below 2005 levels by 2030.  Thus the EPA has been executing apace its “war on coal” powered electrical generation.  Since the US economy is based on burning hydrocarbons for energy it does not take much imagination to realize that this plan would have sent the US economy into a 15 year or longer economic depression had the the presidential election turned out differently.

To recap:  The Mass v EPA lawsuit is not all bad news because of what it revealed.  When someone sues someone they bring with them into court their best evidence, because they want to win the case.  In this case the only “evidence” that the litigants presented to the court that carbon dioxide is causing “injury” to “public health and welfare” is the fact that over the past 15,000 year the coastal lands of Massachusetts have been sinking into the Atlantic Ocean and continue to do so at a rate of 1-2mm/year!

The litigants attempted to tie this observed sinking of the Massachusetts coastline to the < 0.5 ppm of CO2 that emissions from new motor-vehicles within the USA is expected to add to the atmosphere over time.  You be the judge as to whether or not this constitutes actual “evidence” that CO2 is a “pollutant”, but please note that they did not introduce as “evidence” the notion that rising atmospheric CO2 levels cause more tornadoes, more hurricanes, more droughts, more floods, more severe weather events, the mass extinction of species, a collapse in the world’s food supply, etc., as is so often asserted.  After all, the Supreme Court is an actual court of law and in a court of law one has to present actual “evidence” lest one be indicted for perjury.

Comments (3)

  • Avatar

    Joseph A Olson


    It gets WORSE…not only does the human 0.0012% control 99.988% of the atmosphere temperature, but it also controls the temperature of 310 million cubic miles of ocean and 259 billion cubic miles of molten rock.

    It gets WORSE…every day the Moon lifts the oceans an average of three feet and the thin cooled crust floating on molten magma an average of eighteen inches, so sea level has another variable, see Wiki/Earth_Tide

    It gets WORSE….at the start of the Holocene sealevel was 440 feet lower and changed in two thousand years of Warming with NO human CO2.

  • Avatar

    Jerry L Krause


    Hi Carl,

    You are right; carbon dioxide was not guilty. But we all, including, Svante Arrhenius and Robert Wood, you, Roscoe, I, and most everyone else were guilty of not discovering (observing), before 2007, the evidence which would have proven carbon dioxide absolutely not guilty at that time. For, after you first shared the results of your 2012 experiment with me in September of this year, I have read that people, not scientists, had laid thermometers on dry soil at about the same latitude and observed their maximum daytime temperatures of 55oC or greater while the air temperatures being observed were only 40 oC or less.

    So, as long as we had a conventional laboratory thermometer whose scale typically extended 5 or 10 degrees above 100 oC, any of us could have done the same. These unknown people’s observations were likely made during June and July, as your observations were, so I have not been able to check them out because I only learned of them in September or later. But based upon your observations, I have little doubt about the reproducibility of any of the observations of which I am aware.

    So, the question, based upon the difference between the surface temperature and the air temperature only 1.5m above the surface, obviously is: “How is it that the surface temperature can be so much greater than the air temperature a little above the surface? And there can be no doubt that the answer can be: Because of the greenhouse effect as it has been proposed.

    Have a good day, Jerry

  • Avatar



    The legal profession sincerely believes it is superior to the rest of humanity.

    Judgments such as this demonstrate how their smug superiority renders them unsuited to make findings on anything outside their area of expertise – which is really confined to bickering over what some judge said regarding some other legal “expert” said about what certain words mean.

    They have zero credibility in any scientific or mathematical discussion but this does not prevent them from issuing their verdict which by virtue of their appointment is unchallengeable in law – certainly not in any other field of endeavour where they have zero credibility.

    Such judgments become precedent and fodder for future generations of fatuous non experts in anything other than what some other fatuous “expert” meant when they uttered some meaningless judgment in the past – ad infinitum.

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