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.
Yesterday I began a discussion on giving nonhuman beings adjudicatory rights to be represented in courts of law. I introduced readers to a horse named Justice and a Celebes ape who goes by the name Naruto. Justice, through the Animal Legal Defense Fund (ADLF), seeks standing to sue his previous owner for cruelty and neglect and is asking the court to award him $100,000 to cover medical costs and living expenses. The previous owner has already pled guilty to criminal neglect.
Naruto’s case was about copyright law. While fiddling with a photographer’s equipment in the jungles of Indonesia, the ape took a selfie. Acting on his behalf PETA, the People for the Ethical Treatment of Animals, tried to establish Naruto’s right to hold the copyright as its author.
These are among a growing number of animal rights cases. On a parallel track, are efforts both in the US and abroad to give Nature, e.g., rivers and forests, similar adjudicatory rights.
Part 2 continues the discussion reviewing what some other countries have already done to provide nonhuman beings with the right to enter a courtroom. The article concludes linking these types of cases to combatting climate change and the need for Congressional action.
A Horse Is a Horse of Course, Unless Given the Right to Sue— Which Could Be Good for the Environment
The legal “industry” is much like any other it needs to innovate to stay current. For lawyers it often means finding new—at times called novel—theoretical approaches to accomplish a desired outcome. Over the past several years I have written about law cases premised on rarely used or untested legal theories. These efforts have included citizen cases against state and federal governments to establish the constitutional right to a habitable environment, i.e., Juliana v US, and negligence suits by state and local governments against oil companies.
Within recent months I’ve been bumping into an increased number of animal rights cases. Last week a horse named Justice was given 15 minutes of fame in the Washington Post (WaPo). The article triggered an “ah/hah” moment; today’s article is the result.
The article focuses on the legal rights of nonhuman beings—primarily animals and Nature[i]. There is an active link between the protection of animals—human and nonhuman--and safeguarding their habitats as well as our own. Expanding the legal rights of animals and allowing suits by attorneys and organizations on behalf Nature will help to make certain that the inanimate objects, which are the very core of America's beauty, have spokesmen before they are destroyed.
Before dismissing the discussion as a tree-hugger’s induced fantasy, note that there are already legal rights given to nonhumans. Two primary examples are corporations and ships—both are treated in law as “persons” for adjudicatory purposes. There are others. To an extent animals and natural resources are already recognized as “persons” with standing to sue in a court of law. Still, relatively new ideas, the rights of animals and Nature are emerging and expanding legal concepts.
I admit that most of my musings treat Republicans worse than Democrats when it comes to discussing what's afoot in the worlds of climate change and clean energy. The left-leaning tilt of my writings, however, is more a function of my concern for the environment than it is representative of loyalty to any party.
I take some pride, in fact, in not being loyal to any party and willing to vote for the candidate whose views on the environment and other issues, e.g., justice, most nearly reflect my own. In the name of fairness and in memoriam of the Zapple Doctrine, I am turning my attention today to the Democrats and what I believe is their abandonment of the environment in the Age of Trump—starting with a recent article in the Washington Post (WaPo) with the subheading:
When's a good time to talk climate change? Trump officials say: Not during a natural disaster.
The official in question is Secretary of the Interior Zinke whose anti-environmental stance is well-documented. The occasion of his refusal to discuss climate change was his visit to Northern California and the devastating Carr Fire.
There’s no disputing Zinke denies any connection between global warming and the increased frequency and severity of California forest fires. Typical of the man and the Administration he belittled the environmentalists for drawing a connection with hotter and longer summers and the past several years of devastating forest fires in California and elsewhere in the world, e.g., Portugal.
What I do dispute is the article’s claim that Democrats and their allies in the environmental movement, on the other hand, use the disasters as opportunities to bring up global warming. Although true of climate defenders, when it comes to Democrats not so much.
Clean car rules in California, as unpopular as they are with oil companies and auto manufacturers are the clearest opportunity for federal preemption. It is consistent with Trump’s rollback promises and carries a low threat level with core supporters...
--J. B. Stronberg/2017
It has been a busy couple of weeks for Trump and company in the habitable environment department. Spoiler Alert: Mothers and fathers lock up your children—at the least buy them gas masks and hazmat coveralls.
First, the Administration rolled out its proposed rollback of Obama era fuel efficiency and emission standards for cars and light trucks—otherwise known as Corporate Average Fuel Efficiency (CAFÉ) The proposed new rule would require no further mileage efficiencies for new cars and light trucks beyond 2020. While they were at it, Trump and company also proposed smacking down California’s ability to set a more strident emissions standard than the federal government.
Second, Comrade Donald’s EPA (Environmental Polit Agency?) has proposed a framework that will open the US market to new uses for asbestos. The proposed plan was published in the Federal Register at the beginning of June as a Significant New Use Rule (SNUR). Why “comrade” Donald will become apparent in a bit.
Under the Toxic Substances Control Act (TSCA), the EPA is authorized to determine whether the use of a chemical is significantly new, i.e., employed in other than the usual manner. In the case of asbestos, which contrary to the opinion of many has NOT been banned in the US, a new use would include being an ingredient in adhesive sealants or floor tiles.
Both the rollback of the CAFE standards and the new asbestos rule are illustrations of what has become of US climate policies in the Hands of Trump—albeit in very different ways. Of the two announcements, the administration’s proposed freeze of the mileage-per-gallon (mpg) at the 2020 levels will have the most negative consequences on both the nation’s environment and economy. The decision reflects the administration’s willingness to dismiss climate-science and Trump’s vow to undo the entirety of President Obama’s environmental legacy.
The asbestos case is not nearly of the same scope as CAFE in terms of either the environment or the economy. What it does show, however, is an administration incapable of even doing something potentially right because of the tone-deafness of its chief executive. To understand the meaning of this is to appreciate some of the history leading up to both the announcements.
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.