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.
Lately, I’ve been wondering if the battles being fought to maintain federal energy and environment policies and programs are clouding the nation’s collective understanding of what the war being waged against the Trump administration is really about?
Before suggesting what it—the metaphorical war of which I write--should be about, let me say it is not about The Donald. At least, it is not only about him, much as he would probably like it to be. Trump is but the current poster boy for climate deniers. Granted he has a lot to do with the current disheveled state of federal climate affairs. The Big D, however, is merely the intellectually slavish embodiment of the nation’s much more significant problem—the lack of an integrated, stable, long-term energy and environment policy.
The problem pre-dates Trump. Although, #President-Lie-Baby can truthfully claim credit for plumbing new depths of the off-again portion of the feast and famine cycle that characterizes federal clean energy and environmental programs and policies. His is not the first administration to dismiss clean energy technologies as fitting subsidiaries of the Rube Goldberg Industrial Empire.
As Trump is not the actual problem, he offers little hope of being the solution. When was the last time Congress—any Congress—enacted or even considered a national energy and environment policy? The answer is not in the lifetime of most anyone who might be reading this article.
Federal decisionmakers have not considered and acted on energy and the environment in the context of an integrated national policy at least since the efforts that led to the creation of the US Department of Energy in 1977. Even then, the consideration of the environment was incidental to the energy portions of the organization effort. The connection, however, was at least made.
As the public debate about the causes and consequences of climate change remains politically charged and as legislative responses elude policymakers, the nation’s courtrooms have become the issue’s principal battleground. Over the past several years I have often written about the politicization of climate policy and the judiciary’s rise as the default driver of the nation’s environmental policy.
Limited by matters of procedure and precedence, courts of law are imperfect venues in which to debate and decide government’s responsibility to protect its citizens and future generations from the ravages of global warming. In this time of hyper-partisanship and government gridlock, the judiciary is the only fully functioning federal branch of government in terms of making reasoned and stable decisions. How long that will last, the given character of Trump’s nominees to the federal bench remains a mystery.
Although hardly responsible for the political divisions that have led to years of legislative and executive gridlock, Donald Trump has deepened the divide and is ushering in an era in which the judiciary has become the target of partisan attacks. The President’s Twitter attacks of judges based on their ethnicity and his visceral dislike of their decisions are encouraging others to assault the legal system and the rule of law.
Today I am writing about an organization—the Government Accountability and Oversight (GAO) group—determined to diminish the public’s confidence in the overwhelming consensus of the science community about the causes and consequences of climate change and the rule of law. According to the organization’s founders:
…today’s environmental movement is increasingly dominated by a determined and well-funded fringe who are pushing their own center to dubious legal propositions. Among these is a campaign that can only be described as a shakedown operation directed against energy companies. (emphasis added)
The “canary in a coal mine” is a metaphor originating from the time when caged birds were carried into the mines as an early warning system; the canary would die before methane, and carbon gases reached levels hazardous to humans.
Global warming is certainly not our lead talking point.
---- Abigail Ross Hopper/CEO the Solar Energy
The tension running through all levels of American society these days is palpable. An age of identity politics—groups of every ilk, are pulling back behind their defining walls. Traditional alliances are being broken, and new ones are slow to form. Dealmaking has taken on the airs of a zero-sum game in which there can only be one winner.
It all has me wondering if we shouldn’t consider changing the nation’s name. The word United somehow seems terribly out of place.
This may be another instance when Trump understands the mood of the public—or at least a sizable segment of it—better than other politicians and the pundits. I’ve always assumed Trump chose to use the mantra of make AMERICA great again--rather than Make the United States of America Great Again--because it didn’t fit neatly on a baseball cap. Now, I’m not so sure. He could have used USA and given the rest of the phrase a bit more breathing room.
Donald John appears content to serve only 40 percent of the population; and, the 40 percent seems content to let him. Trump has shown little inclination to unite the country. In anticipation of the November mid-term elections, he directs his message only to his core supporters, putting the rest of the nation on notice that he and his followers are coming for them.
In consort with the Republican majorities in both the House and Senate, Trump and company are assaulting the climate and clean energy sectors. Almost all environmental regulations that came into force during the Obama administration have either been rescinded, suspended or are awaiting a final court decision. The regulations include the Clean Power Plan (CPP), the Waters of the US (WOTUS), average corporate fuel efficiencies (CAFE), greenhouse gas emissions from oil and gas exploration and extraction on federal lands, and more.
Wouldn’t it be great if we could put questions of climate policy directly to voters? It would be like an
opinion poll with teeth and consequences. ----- JBernard
The 2016 election of President Trump and Republican congressional majorities has made crystal clear the vulnerability of federal climate policies and programs to shifting political winds. Hardly a secret, the partisan nature of the global warming debate has never been as much in evidence as it is today.
The climate-science community now anticipates the world crossing the 1.5-degree threshold sometime around 2040—60 years ahead of the Paris climate accord’s (Accord) end of century target. A record hardly to be proud of but one which it is essential to keep in mind.
At a time when emission reductions need speeding up, the US is being led by a president and political party in denial; a group foppishly opposed to environmental regulation and committed to coal and other fossil fuels contrary to the interests of the environment and the economy.
Resistance to the Administration’s rollback of existing environmental protections to an earlier time travels two primary paths:
Q. What if a government refused to comply with a court order directing it to put into place a climate recovery plan that would reduce emissions sufficiently to stay below the 1.5 degree Celsius?
I have been writing a lot lately about the rising number and variety of environmental lawsuits being filed in state and federal courts. The hundreds of active climate-related cases exhibit a wide range of purpose. Some are asking a judge to overturn EPA Administrator Scott Pruitt’s summary suspension of an existing environmental regulation without the due process of law. In other cases, a criminal defendant is attempting to justify shutting down an oil pipeline as necessary to avoid a greater harm being done to the community. State and local governments have even begun asking the courts to hold oil companies financially accountable for the damage they do to their communities by emission of greenhouse gases (GHGs) like carbon dioxide.
Recourse to the courts is a predictable response to the failure of government—especially the federal government—to construct and maintain a strong and stable bulwark against the increasing threats of climate change. Courts in the US are not alone in seeing an uptick in legal actions.
Judicial bodies around the world are being asked to elevate environmental sustainability to a fundamental human right and to order their governments to be more aggressive environmental protectors of nature and society.
The election of Donald Trump as president and Republican congressional majorities in 2016 has made crystal clear the vulnerability of federal climate policies and programs to shifting political winds. Although hardly a secret, the partisan nature of the global warming debate has never been as much in evidence as it is today.
The 115th Congress began rolling back Obama era environmental protections even before Donald John was sworn into office. From his first days in the Oval Office (#djtintheoffaloffice), Trump has been:
Legal actions questioning the diligence of governments and the culpability of fossil energy companies were being filed long before Trump came to town. Juliana v U.S., a case in which the plaintiffs are claiming a constitutional right to a habitable environment, was first filed against the Obama administration.
Trump’s election and the Republican’s capture of both the House and Senate, however, has ushered in an open hunting season on federal climate-related policies and programs. Any attempt to have legislation for the protection of the environment introduced into the current Congress is dead on arrival—as is any request of the White House.
Ever since the election of Trump as president and Republican majorities in the House and Senate, climate defenders are whistling past the White House and Congress.
The lack of a realistic political option (Plan A) has naturally caused climate defenders to pursue their objectives in court (Plan B). In the grander scheme things, however, the legal option is less than optimal. As will be explained further on Plan B's inherent weaknesses suggest the need of a Plan C.
The Senate is scheduled to be open for an additional 32 days. It’s not that the upper chamber works harder or has more to think about than the House, it’s more a reflection of a mistrust of the president—particularly this President. As long as the Senate is technically in session, the chance for Trump making interim appointments drops pretty much to zero.
I thought it helpful to provide a rundown of the remaining legislative days’ events and offer a bit of commentary about what Congress and the White House/executive branch will be doing between now and November. Having some idea of what our elected leaders and representatives are likely to be up to in Capital City should help readers plan what they might want to be up to politically themselves.
There are significant things still to be done by the 115th Congress. The Senate, for example, will have responsibility for acting on Trump’s nominees for federal judgeships and literally hundreds of key executive slots, including ambassadorships and the number two and three officials in many of the cabinet-level agencies and departments that have yet been filled or need to be re-filled because of presidential petulance.
Another mainstay legislative priority popping up before November is funding the government for Fiscal Year 2019. Most of the hard decisions have already been made. Some others do remain, e.g., the Farm Bill, will need new authorizing legislation. There will also be the inevitable surprises over which members of Congress will want to have some say.
Unaccountable occurrences can include, anything—airstrikes in Syria, escalated trade wars or skirmishes between the U.S. and any other nation in the world with the possible exception of Russia, the resignation of a president—as opposed to the continuing resignation of the nation to the president.
Much of the action over the next two months of legislative days, however, will amount to little more than a stylized pre-election dance. There will be the inevitable dumping of legislative proposals having no chance of being considered by the requisite committee let alone of passage.
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.