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.
Supreme Court Tells White House ‘No,’ As A Buncha Kids Sue
The Government Over Global Warming
Three strikes and the Trump administration is now out—or more accurately “in.” Trump and company have now been told by the US Supreme Court in a very brief 5-4 decision that they must stand in open court and defend themselves against the charge they are denying the 21 youthful clients in the case their constitutional right to a habitable environment.
The High Court’s decision is of historical significance and accurately cast in terms of firsts and lasts. It will be the first-time climate-science is debated in open court—likely the only forum in these partisan times in which global warming can be honestly and fairly debated.
The plaintiffs’ victory in the case would be the first in the US to establish a constitutional right to a habitable environment and place upon the federal government the responsibility of holding in trust the nation’s natural resources.
The July 30th decision may have been the last Supreme Court case in which Justice Anthony Kennedy will have tipped the decision in favor of the environment, much as he did in Massachusetts v EPA and Rapanos v US—the cases that led respectively to the Clean Power Plan (CPP) and the Waters Rule of the US (WOTUS). WOTUS and the CPP are among the most litigated environmental regulations in history.
I say may have been because Monday's decision didn’t indicate how each of the justices voted. Given the history of each of the justices and the need for five of them to have agreed on the decision, it is a reasonable guess. The decision read in part:
The Government’s request for relief is premature and is denied without prejudice.
The High Court’s decision followed two by the U.S. Court of Appeals for the Ninth Circuit that similarly refused stopping the suit from going forward or summarily dismissing it even before it was heard in open trial in the Oregon Federal District Court.
As Congress leaves for its August recess and prepares for the coming midterm elections, I thought it a good time to update readers on the current goings-on in Capital City and their impact on climate-related programs and policies.
While Trump continues to shock and awe the nation and his staff with tweets and new orders , Congress is facing some important legislative deadlines, many of which will likely end up in can kicking until after the elections. The stars still favor a Democratic takeover of the House and maintenance of the Republican’s Senate majority—slim as it may be.
I don’t recommend anyone betting their farms on those predictions. These are unusual political times and are likely to stay that way at least through the 2020 national elections.
The Administration continues its bid to pack the federal courts with as many conservative judges as the Republican Senate is willing to confirm. In addition to sn historically high number of federal district and appellate court vacancies to fill, Trump has been given a second chance to nominate a Supreme Court (SCOTUS) justice. His choice of Judge Brent Kavanaugh to fill the shoes of Justice Kennedy is playing well with most Republicans—whether Trump’s core supporters or establishment Senators. Kavanaugh has been a judge on the Court of Appeals for the District of Columbia Circuit--considered the nation’s second most important court after SCOTUS and the High Court’s AAA farm club.
Kavanaugh is unlikely to be a pro-environment justice, although he believes climate change is real and that Congress should do something about it. As discussed further on, judicial nominations are also a priority of Senate Majority Leader McConnell and are one of the few areas in which he and Trump are in actual lockstep.
The biggest environmental news of the past few months was the resignation of EPA Administrator Pruitt. After the 12th or 13th ethics charge was lodged against him, Senate and House Republicans started to abandon ship. After the 15th or 16th, The Donald seemed to agree and fired him—despite how much he appreciated the man’s zeal to undo Obama’s entire environmental legacy.
The nation remains closely divided in its view of President Trump. Many on the Right tout him a savant—wise in a way no other chief executive has ever been. An anti-establishmentarian for our time, if you will. An almost equal number on the Left question his intellect and wonder how he ever managed to pass civics class, let alone, how he became the 45th President of the United States.
Whatever your view of The Donald, his innate understanding of where loopholes in the governance system reside and how to capitalize them to his advantage should not be under-estimated. His perception and use of a president’s national security powers is unprecedented both in terms of frequency and the variety of applications. They are, as well, only vaguely defined in law and practice.
Trump has invoked them to impose tariffs on foreign aluminum and steel, threaten restrictions on the import of foreign autos and slow immigration. “National security” has been used by his administration, both successfully and unsuccessfully to justify suspension of environmental regulations and maintain uneconomic coal and nuclear-fueled electric generating units.
The reticence of a Republican Congress to check or even challenge his use of national security has in the words of Peter Harrell, an adjunct senior fellow, at the Center for a New American Security:
…upended longstanding international agreements and stretched the definition of “national security”
beyond the intent of Congress in the decades-old statutes that Trump has relied on. Congress needs to
restore its historic role on trade and economic policy and by reforming national security authorities
to limit their use to pursue economic policy.
Once more unto the breach, the attorneys representing the youthful plaintiffs in Juliana v US were back before a judge defending their clients’ right to have their day in court. The case was first filed in the U.S. District Court of Oregon in August 2015. Since that time, the plaintiffs have faced what seems like a perpetual series of motions by US Department of Justice attorneys asking that the case be thrown out either on procedural grounds or for lack of legal sufficiency.
The July 18th hearing was on the government’s Motions for a Summary Judgement (MSJ) and A Judgement on the Pleadings (MJP). With one exception—dismissal of President Trump from the lawsuit—the government attorneys appeared to be rearguing issues rejected in March by a 3-judge panel of the Ninth Circuit Court of Appeals.
This most recent hearing was before Federal District Court Judge Ann Aiken. It marked the first time since September 2016 that Judge Aiken heard arguments in open court. Aiken is the trial judge in the case that is set to begin on October 29, 2018.
It is easy enough to appreciate the Administration’s desperately trying to avoid allowing the climate science to be presented at trial. The plaintiffs’ victory in the case would establish a constitutional right to a habitable environment and place upon the federal government the responsibility of holding in trust the nation’s natural resources. Juliana will be to the environment what Brown v Board was to public education.
Should the plaintiffs prevail, federal support for fossil fuels in its many forms, e.g., tax incentives and access to federal onshore or offshore properties for exploration and extraction, would need to be phased out and replaced by a clean power plan on steroids. No longer a matter of party loyalties an established constitutional right to a sustainable environment would be to partisan politics what Alexander’s blade was to Gordius’ obdurate knot.
For progressives, Democrats, and even some Republicans, the horrors of a Trump presidency are cloaked in judicial robes.
The retirement of Supreme Court Justice Anthony Kennedy may do more to weaken the nation’s environmental protections than the election of Donald J. Trump. A bold statement, I know, but a scenario all too easily imagined particularly when Kennedy’s successor is viewed as only one of the more than one hundred federal judges Trump will appoint during his four years in office. (See Figure)
Kennedy’s retirement guarantees that the most conservative U.S. Supreme Court in nearly a century will become even more so should Judge Kavanaugh be confirmed as Kennedy’s replacement. In number, the split remains the same at five (5) conservatives and four (4) liberals. The numbers, however, do not tell the full story.
Many Republicans still rage over Justice Souter, a man sold to them by the Reagan White House as a true and reliable conservative. A justice, who upon announcing his retirement 19 years later, was vilified for having sided with his colleagues on the court who have preferred a course charted not by the fixed constellation of America’s Constitution, but rather the expansive and swelling currents of progressive political ideals. (emphasis added)
Souter’s votes to uphold Roe v. Wade, forbid public-school-sponsored prayers at graduation ceremonies and declare unconstitutional the public display of the Ten Commandments in two Kentucky counties, branded him as a traitor to the true conservative cause. Souter’s perceived treachery has led to a promise by many in the Republican party never to be fooled again. Whether Kavanaugh can convince groups on the right, like the American Family Association (AFA), that he’s a no-foolin’ conservative remains to be seen. As of the morning after Trump’s announcement, AFA is the only conservative group to acknowledge its opposition to Kavanaugh publicly. Other opponents may be waiting in the wings.
This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels
has materially increased atmospheric carbon dioxide levels, which in turn has increased the
median temperature of the planet and accelerated sea level rise. However,…
---Judge Wm. Alsup
Judge Alsup has spoken. Chevron, ExxonMobil and other of the world’s oil companies, large and small, are breathing easier as a result of his dismissal of the City of Oakland and the People of the State of California v BP P.L.C. et al. The suit is one of several recently filed in both federal and state courts by cities, counties, and states alleging they have suffered a redressable harm at the hands of the big oil.
In addition to Oakland and a series of other suits pending in California, New York City has initiated a case against ExxonMobil as has the City of Boulder, Colorado. The plaintiff cities and states are following the same paths taken earlier in tobacco and asbestos suits. Those cases were pursued under state nuisance laws, which are more settled than federal.
Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. In law, a tort is defined as an act or omission giving rise to an injury or harm to another. Specifically, under federal common law, a public nuisance is an unreasonable interference with a right common to the public good.
Although the Oakland case began in the state court, the defendant oil companies prevailed in their motion to have it removed to the federal level. The removal order was the defendant oil companies’ first victory in the case and was issued by Judge Alsup; the same judge who just issued the dismissal order.
The reason Alsup granted the removal order from state to federal court was straightforward. He worried that if a precedent was established to hear these types of cases in state courts, it could lead to [a] patchwork of fifty different answers to the same fundamental global issue [which] would be unworkable…. Given that other local jurisdictions, e.g., New York City, are bringing similar suits against the major oil companies, the patchwork problem is hardly hypothetical.
…there is an easy, capitalist fix: return all the money raised directly to the people, thereby offering all Americans
tangible benefits in the here and now.
Tax Be Nimble--
A new group of well-respected business and government leaders formally entered the environmental fray in recent days. Led by the former Republican Senate Majority Leader, Trent Lott (R-MS), and the former Democratic Senate Deputy Majority Whip, John Breaux (D-LA), Americans for Carbon Dividends (AFCD) are advocating the adoption of the Baker-Shultz Carbon Dividends Plan (hereinafter Baker-Shultz).
The organization is new; the proposal is not. The Dividends Plan, named for the former secretaries of state James A. Baker III and George P. Shultz—both with long and distinguished careers in government and solid Republican conservative credentials—was released by the Climate Leadership Council in 2017.
The basics of the plan are this:
Of the two organizations, it appears that AFCD will lead advocacy efforts in the political arena as a tax-exempt 501(c)(4) corporation. The designation allows the group to run paid advertising, lobby policymakers and otherwise undertake media campaigns to build support for the idea. CLC’s 501(c)(3) status constrains its political activities.
I have written regularly over the past 18 months about the rising number of environmental lawsuits being filed each year in US and foreign courts. (see Figure 1) In each of the dozen or more articles, I have consistently stated:
Today, I would like to focus more forcefully on the last of these four bullets—why winning in the court will not win the war on climate change—than I previously have.
I do this not to suggest anyone should refrain from pursuing their government given-right to seek redress for their and Nature’s grievances nor to diminish the importance of doing so. The fact is winning in court is not all it’s cracked up to be given the length of time it takes for a case to be decided and judicial orders to be enforced, the possibility of reversals of lower court decisions by appellate courts, and the political vulnerability of all judicial decisions even those of the US Supreme Court (SCOTUS).
Before getting into the substance of the argument, permit me to declare the only proper conclusion that should be drawn from it--
Judicial decisions that favor climate defenders, in whatever guise, e.g., constitutional protections, compensation under tort laws,
or in defense of civil disobedience [i], will fail to keep the rate of global warming within habitable bounds unless and until they
lead to an aggressive and stable national integrated energy and environment policy.
Judicial limits are as much practical as theoretical. Consider, for example, who can sue. Although courtroom doors are theoretically open to everyone, once through them, plaintiffs must establish their right to proceed to trial.
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.