(This is the second in a series on the impact of the 2018 midterm election on federal climate policies leading up to the 2020 presidential election. The first installment may be found here.)
Dateline November 14, 2018
The most contentious and expensive midterm election in US history is almost over. When the dust finally settles it will have ended pretty much as predicted. The incoming 116th Congress will open for business— divided. Democrats will control the House Republicans the Senate. It is a fitting reflection of the state of the union.
The election results are such that progressives and populists are each spinning them to advantage—with varying degrees of success. Within hours of the polls closing, Trump began a victory lap evaluating his efforts as history-defying. For a change, there is some truth in what The Donald is saying. It was just the third time the party in the White House gained Senate seats in a midterm election. The last time was 1914—Wilson was president. That same year the Democrats lost 61 House seats—a far more significant loss than #Trumplicans have just experienced.
Typical of the nation’s Narcissist-in-Chief Trump congratulated the winners for having embraced him. A day after the election he taunted the losers who refused to wrap their arms around His Greatness and what he represents. To Mike Coffman (R-CO) Trump merely said “too bad Mike.” The Grand Wizard of the White House was sharper in his shout-about to Representative Mia Love (R-UT)--the only Republican woman of color serving in the current Congress. "Mia Love gave me no love. And she lost. Too bad. Sorry about that Mia.
The Democrats did their own bit of crowing. The current Minority Leader and likely next Speaker, Nancy Pelosi, alluded to the results as the dawning of a new day for America. Judging from the row between Trump and a CNN reporter, the forced resignation of Attorney General Sessions, and appointment of an Acting Attorney General that many believe uniquely unqualified, it is just another day in America in which Trump doubles down on being Trump.
How the environment fared in the midterms, like most things these days, is up for debate. Much depends on one’s perch and expectations. Although pleased with the Democratic takeover of the House, most reactions from the climate defense sector were subdued in tone but suggested there might be better days ahead in Capital City. I have my doubts.
The 2018 midterm elections will be memorialized as among the most contentious in modern history. Charges and counter-charges of racism, lies, corruption, and sexual predation are not all the lead up to November’s balloting will be remembered for, however. The 2018 elections are also proving to be the most expensive midterms to date. (See Figure 1)
By any standard, we’re talking big bucks here. Representative Beto O’Rourke (D-TX), by last count, has raised over $69 million in his effort to defeat Senator Ted Cruz (R-TX). In defense of his seat, Cruz has raised over $40 million.
Democratic House candidates have raised nearly $1 billion compared to the Republican's $637 million. The non-partisan Center for Responsive Politics estimates total spending by the parties, candidates, and political action committees will be in excess of $5.2 billion by the time the midterms are over.
Conspicuous by their presence are climate-defending organizations and individuals. The League of Conservation Voters (LCV) is expecting to drop $60 million into Democratic campaign coffers in state and Congressional races. Move.Org Political Action has raised $25.5 million and spent $21 million on Congressional races through the middle of October.
(This is an update of the earlier article Juliana vs. US: Stayed but Not Stopped! For Children of All Ages)
November 2, 2018.
Late this afternoon the US Supreme Court (SCOTUS) released a brief 3-page order denying the Trump administration’s motion to dismiss the Juliana case in advance of trial. The allowance to proceed comes as something of a surprise as it follows Chief Justice Roberts’ stay of the trial just days before it was scheduled to begin in an Oregon federal district court.
I and others saw Roberts’ stay of the trial as a sign that the five conservative members of the High Court didn’t think the case could stand on its merits. I had written earlier that Chief Justice Roberts’ stay of the case before trial is generally considered as an extraordinary step. A step that was taken several years earlier by the Court preventing the Clean Power Plan from going into effect.
It was the second time Administration attorneys had asked SCOTUS to dismiss the case. The first denial of the government’s motion was the last official act of Justice Anthony Kennedy. Kennedy had provided the swing vote in several landmark environmental law cases including Massachusetts vs. EPA.
The appointments of Justices Gorsuch and Kavanaugh to fill the seats of Justices Scalia and Kennedy were thought likely to lead to a grant of the second (mandamus) motion that would have effectively served to stay the case permanently. As it turned out, a majority of the Court confirmed its previous opinion—that dismissal on the merits was premature—and the views of the trial court and the Ninth Circuit Court of Appeals. Justices Gorsuch and Thomas would have granted the government's request.
Friday’s order allows the case to go to trial; it is not an opinion on either the merits of the plaintiffs’ allegations and arguments accusing the federal government of failing in its constitutional obligation to protect them from the ravages of global warming. Neither is the order affirmation of a federal court's ability to redress plaintiffs’ grievances.
The plaintiffs will now ask the federal court in Oregon to set a new trial date. The trial is expected to take up to two months. It will be the first time that climate science is called to the witness stand. Once the trial begins Administration lawyers are likely again to seek a dismissal claiming some variation of its previous argument that the court is addressing a political question that can only be answered by Congress and the president.
It may be years before a final decision in the case will be made.
It is October 30, 2018, do you know where the children in the case of Juliana v. US aren’t? They aren’t in the second day of what had been billed as the “environmental case of the century.” In a last-ditch effort to halt the suit, the Trump administration appealed to the US Supreme Court (SCOTUS) to stop the case before it got to trial.
The Juliana plaintiffs have endeavored over the past three years to establish a constitutional right to a habitable environment and to place the nation’s national resources like land, water, and forests into a public trust under the trusteeship of the federal government. If successful, the case would force the Trump administration to craft and implement a Clean Power Plan (CPP) on steroids and potentially preventing it from giving away the Grand-Staircase-Escalante, Bears Ears and other federal lands and landmarks or opening them up to commercial exploitation.
The October appeal was the second time the Administration asked the High Court to stay the trial. An earlier—essentially similar—request was denied. What happened between the July 30th denial and the October 19th stay was the addition of Brett Kavanaugh to the Supreme Court bench. Kavanaugh filled the seat of retiring Justice Anthony Kennedy. Although a credentialed conservative, Kennedy deviated from his conservative colleagues when it came to the environment.
Had it not been for Justice Kennedy Massachusetts vs. EPA would not have set the stage for the Clean Power Plan and other of President Obama’s legacy climate preserving actions—most of which is being unwound by Trump and company. Massachusetts established EPA’s authority—nee obligation—to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) once it determined they endanger the health and welfare of the nation.
Chief Justice Robert’s stay of the case before trial is generally considered by legal experts as an extraordinary step. Although the same extraordinary step was taken to stay the CPP.
In its initial refusal to stay the case SCOTUS agreed with the Ninth Circuit Court of Appeals rejections of two earlier motions by the government. The appellate court’s rulings were based on procedural matters rather than on the merits of the plaintiffs’ claims. Both courts had indicated the government would have ample opportunities to contest the substance of the allegations and requested redress during and after the trial.
Scarcely any political question arises in the United States that is not resolved,
sooner or later, is a judicial question.
----Alexis de Tocqueville
From Mother Earth's perspective, the most important ballots cast on November 6th could be in the 30 contests for state attorney general (AG). The role played by AGs in the nation's transition to a low-carbon economy is easily ignored in the heat of this year's Congressional elections. Over the past decade or more, however, it has mostly been the states' AG's who have made the difference between implementation and litigation of the environmental regulations flowing out of Washington.
AG's are important not only for who they are but for whom they might become. Today's attorney general may be tomorrow's governor, congressman, senator or administrator of the US Environmental Protection Agency.
Scott Pruitt's election as Oklahoma's top attorney led to his becoming Trump's trusted regulatory hatchet-man. Pruitt earned his conservative creds by suing the Obama admin-istration at least 14 times over environmental issues alone. Recognized as environment's public enmity number one, Trump saw Pruitt as the ideal candidate to take control of the Agency both would prefer to live without. Evidence of the faith Der Donald placed in Pruitt was the length of time it took the president to "accept his resignation," considering the mounting ethics charges. A courtesy Trump was unwilling to accord HHS Secretary, Tom Price.
There are currently 1,023 climate-related law cases listed on the Litigation Chart managed as a joint project of the Sabin Center for Climate Change Law at Columbia University and Coland Arnold and Porter Kaye Scholer, LLP. In 2016 the number of all the US domestic climate lawsuits on the database was 873[i],[ii]
The rising number of cases is mostly a matter of politics. Believers and deniers of global warming fall largely along party lines, according to the Pew Research Center. Representative of the yawning divide between the parties is the Trump administration’s dedication to undoing all of President Obama’s environmental legacy for no reason other than it is Obama’s legacy. The cycle has been repeated before as Clinton’s generally pro-clean energy and environmental administration was followed by Geo. W. Bush's which was considered the least favorable of modern times--a designation that now passes to the Trump administration.
In the past week or two Trumpsters gave climate defenders new reasons to take the Administration to court—of either the legal or public opinion variety. Before letting you in on what types of cases have the best chance of winning in court, I want to update what the Cabal currently in charge of the federal government is up to these days—climate-wise.
1. The Environmental Protection Agency (EPA) is looking to make it easier for coal plants to release mercury into the world where the powerful neurotoxin has been known to damage the brains of infants and children. To accomplish the task, the Administration is proposing to recalculate the costs and benefits of the existing Obama era rule. As is usual for the Trumpsters they are heavily discounting the benefits side of the equation and inflating the cost to coal-fired power plant operators.
The proposed rule change is a slight of hand intended to help coal producers stay in the game—whatever the consequences to the rest of us. If EPA is allowed to get away with the move, it could insulate coal-fired generating plants from the risk and technology review required under Section 112 of the Clean Air Act (CAA). The review is meant to determine whether remaining levels of hazardous air pollutants continue to pose unacceptable risks to public health.
(I'm as mad as hell, and I'm not going to take this anymore!)
Within the last week or two, both the 43rd and 44th presidents of these here United States were back on the stump in anticipation of the November elections. Their return to politics breaks a seven decades-long practice of ex-presidents staying silent about the goings-on of their successors.
Like other presidential traditions in the age of Trump, the code of silence was destined to be broken. It is inconceivable that old number 45 could—upon his exit from office—control himself for as much as a New York minute before telling his successor how dull s/he is compared to his orangie-brilliance.
Bush and Obama are predictably being bashed about by the opposition press for their decisions. Vox’s Mathew Iglesias dismisses any suggestion that Bush has returned to politics to lead the Republican resistance. He chooses to believe that 43 has two missions. One is to raise money for Republican House and Senate candidates. The other is to convince Republicans in districts that swung against Trump to swallow their doubts and reelect a Congress that is determined to enable Trump — his corruption and…attacks on the rule of law. (emphasis added)
In today’s tit-for-tat world, Gary Locke of the Weekly Standard termed Obama’s speech at the University of Illinois the answer to the Democrat’s partisan prayers. According to Locke, Barack Obama finally did what Democratic activists had been desperately hoping he would do—he reproached his successor ahead of the midterm election. The speech for Locke was a long, discursive oration…[with] lots of impromptu gibes and derisive harrumphs that made the 44th president sound less like a retired statesman than a candidate vying for office. (emphasis added)
A more neutral observer would have judged Obama’s gibes much inferior to Trump’s harrumphs, while fairer assessments of two ex-presidents breaking with tradition might consider them motivated by more than mere partisanship. Have Bush and Obama returned to competitive politics to raise needed contributions and help their respective parties win in November? Undoubtedly, they have.
Politics, after all, is a game one pays to play. Having skin in the contest moves 43 and 44 from the sidelines to the field where they can speak more securely about the current state of America's public affairs.
(Senator James Inhofe (R-OK) proves global warming is a hoax.)
As it is written, so it shall not pass!
Spoiler Alert: From an environmental perspective, the Trump administration’s proposed replacement for the Clean Power Plan (CPP)—dubbed the Affordable Clean Energy plan (ACE)--stinks!
That’s just the beginning of the story. A story that once again ends with climate defenders and deniers duking it out in federal court over the next two to five years.
It should come as no surprise that the Trump administration has chosen to replace its predecessor’s Plan with one that does little, if any, good for the environment. ACE reflects the high value—political and economic—the Administration places on coal and other fossil fuels and the low regard in which it holds the clean energy and efficiency sectors.
The proposed plan continues White House efforts to buck an energy market moving on its own towards natural gas and renewables like solar and wind . A movement motivated more by economics than environmental regulation. ACE, for example, makes it easier to keep dirty-old coal-fired electric plants online. As one independent—but very politic—research company wrote:
ACE is a tepid pledge to fight climate change that’s actually a coal bailout.
Supreme Court Tells White House ‘No,’ As A Buncha Kids Sue The Government Over Global Warming
—from an article by Alex Parker
This is an update of an article published 1 August 2018
Since the US Supreme Court’s (SCOTUS) July 30th denial of the federal government’s motions to dismiss the case of Juliana vs. US, the plaintiffs and their attorneys have been preparing for trial—the one the Trump administration had hoped to avoid and that others are calling the trial of the century.
Barring a last-minute reprieve from the court, the Trump administration must now stand in open court and defend itself against the charge they are denying the 21 youthful plaintiffs in the case, their constitutional right to a habitable environment. In what appeared to be another effort to push back the trial date, government attorneys complained to Magistrate Judge Thomas Coffin that they thought themselves unable to depose all 21 plaintiffs before the trial on October 29, 2018.
Judge Coffin reminded Administration attorneys they had earlier taken a pass on opportunities for pre-trial discovery—presumably expecting to prevail in their dismissal motions. Coffin viewed the August 16th status report as a ham-handed attempt to stall the case; a tactic he said he hadn’t encountered before as a judge.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.