Much ink was spilled in reporting the length of the recent tax reform legislation. Philip Bump of the Washington Post, for example, wrote:
I have absolute right to do what I want to do with the Justice Department
--Donald John Trump, 45th President of the U.S.
This installment of the Here Comes the (Trump) Judges series continues the discussion of the potential long-term impact of Trump’s judicial appointments on climate and clean energy policies and programs. Federal courts in the Trump era are playing an increasingly pivotal role in the efforts of climate and clean energy advocates to maintain existing environmental protections—not only those put in place by the Obama administration but foundational policies and programs dating back to the 1970s.
Action by the Administration, with the complicity of Congressional Republicans, is not limited to rolling back regulations. It includes efforts to hamstring and gut the agencies and offices responsible for carrying out the many clean energy and climate policies on the books for combatting global warming.
In its haste to deregulate and defund, Administration officials from Donald on down are often failing to follow the rule of law, as established by the Administrative Procedures Act and such legislation as the Clean Air and Waters Acts. Enforcement of the rules is increasingly being left to the courts as a result.
Gridlock and hyper-partisanship have made recourse to the more traditional and accessible avenues of action, e.g., internal party dialogue and Congressional debate, less useful. Consequently, the flow of traffic to the courts daily increases. Hardly any Administration action—be it an executive order limiting immigration or an agency’s reticence or refusal to enforce an existing law—goes unchallenged.
I began the Here Comes the (Trump) Judge series because my sense is too little attention is being given to the Administration’s filling of judicial vacancies by the climate and clean energy community.
Through the magic of YouTube TV, I was able to sit in on the oral arguments in the latest episode of Juliana v. United States. The lawsuit is being brought by 21 plaintiffs ranging in age from 10 to 21. It accuses the federal government of causing them harm by failing to protect them adequately from the effects of global warming. Plaintiffs are asking the court to order the federal government to do something to redress the problem, e.g., regulating carbon emissions from power plants and fossil fuel extraction on federal lands.
The case was filed in 2015 when Obama was still in power—which may seem a bit ironic given what he tried to do with the Clean Power Plan (CPP) and such. Trump and company inherited the case when they took over the federal government—which seems only just given the vehemence of their denials that anything nasty is happening climate-wise and their unwinding of Obama era protections.
Monday’s arguments were not about the substance of the Juliana case but the Oregon District Judge’s November 2016 opinion affirming plaintiffs’ standing to bring the suit and setting a February 2018 trial date. Technically the U.S. Department of Justice (DOJ) complaint was against the Oregon [Federal] District Court, hence the case title United States v. USDC-ORE.
The hearing was before a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit. The DOJ was asking the court to issue a writ of mandamus reversing Judge Aiken’s order allowing the case to be heard. Of the three judges hearing the case, two were appointed by President Clinton and one by President Reagan.
If the government prevails at this point, then Juliana v. United States will be halted in its tracks, pending what I would call a “Hail Mary Reprieve” by the U.S. Supreme Court (SCOTUS).
If, however, District Court Judge Aiken’s opinion is upheld, then it will arguably be on its way to becoming the most important environmental case of the century—perhaps of any century.
Part 1 of the Here Comes the (Trump) Judges series began with a discussion of the increasingly pivotal role federal courts are playing in determining national environmental and climate change policies and resolving the conflicts between defenders and deniers of mainstream climate science.
The authority of Article III courts extends to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (Article III/Section 2)
Today’s part continues the discussion highlighting the nominating and confirmation process for federal judges and justices of the Supreme Court. The process has become more one-sided in recent years. Today’s article also introduces readers to some of the (mostly white) men Trump has appointed and the principal group behind their nominations.
Lifetime judicial appointments are intended to insulate judges and justices from political pressures. It is a tried and reasonably true principle permitting federal benchwarmers to decide cases and controversies on their legal merits without having to worry about being fired by political bosses.
Were it not for lifetime tenure, it is more than likely that the “Mexican” U.S. District Court Judge candidate Trump railed against would have been sent back to where he came from—Indiana—by President Trump.
I say likely not only because Judge Curiel made a decision in the Trump University case The Big D didn’t like, but because he was an Obama appointee. President Trump has exhibited a marked dislike for anything Obama—particularly environmental protections and a willingness to acknowledge global warming as a problem.
This begins a new series of commentaries on the impact the Trump presidency and the current Republican Congressional majorities are having on federal climate change policies. The emphasis of the series is not on executive branch actions to revise and rescind existing environmental regulations nor on Congressional efforts to amend or to abolish current climate-related laws—although these actions will be discussed.
The impacts I particularly wish to address through the series stem from the changing of the judicial guard in the courts established under Article III of the U.S. Constitution[i], which states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (Article III/Section I)
There are three primary levels of Article III courts (see Map for districts/circuits):
Other Article III courts include bankruptcy and those of specific jurisdiction like the United States Tax Court and the United States Foreign Intelligence Surveillance Court (FISA).
Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.
Franklin, at the height of the French Revolution, wrote the introductory sentence to this article in a letter to his friend and fellow scientist Jean-Baptiste Leroy. Franklin was worried about Leroy's well-being in the face of the populist revolt:
Are you still living? Or has the mob of Paris mistaken the head of a monopolizer of knowledge, for a monopolizer of corn, and paraded it about the streets upon a pole.
Mr. Franklin would be upset to know that in the Age of Trump the durability of the Constitution is as threatened as the future of federal clean energy and climate defense policies and the role of scientists in their development. I will, however, leave the matter of the Constitution for another day and focus instead on renewable energy tax credits.
To paraphrase Franklin nothing is certain in Capital City except death, taxes and the debate over renewable energy investment and production tax credits.
Readers who thought the compromise reached by the Congress in 2015 had ended the debate about the future of investment (ITC) and production tax credits (PTC) for wind, solar and other clean energy technologies should now be having second thoughts. The 2015 agreement (the PATH Act) was intended to provide tax certainty for both credit categories. It is no longer certain it is accomplishing the objective.
Now available as an E-book at Kindle and Kobo--soon at Barnes and Noble.
I'll also be making it available very shortly as a PDF and a Print-On-Demand.
For details contact me at email@example.com
Are these the end days of life on Earth as we have come to know them and wish to envision them for future generations? A time of great earthquakes, warming and rising oceans, famines and floods. When torrential winds and water rain down upon us as storms named Maria and Utor? When nations will soon rise against nation not out of hate but out of hunger?
Within recent weeks several reports have been released each painting a picture of a time not too distant when the worst becomes commonplace. The good news is these are warnings not predictions of inevitability.
Over 15,000 scientists from around the world published A Second Notice to humanity of the danger of continuing to live like there is no tomorrow. The first, signed by just 1700 scientists, was posted 25 years ago.
According to Henry Kendall, a particle physicist and a co-founder of the Union of Concerned Scientists:
If not checked, many of our current practices put at serious risk the future that we wish for human society and the plant and animal kingdoms, and may so alter the living world that it will be unable to sustain life in the manner that we know.
Increasing speculation on the early retirement of Donald Trump from the presidency naturally leads to thoughts of how federal clean energy and climate programs would fare under President Mike Pence. The short answer, based on his history of public service is not well.
Even should Trump serve his full first term and go the distance as a two-timer, a Pence presidency is within the realm of possibility. Fourteen vice-presidents have gone on to become president, only four have been elected in their own right.
The odds of Pence running for the Oval Office are higher than his gaining it. Six vice presidents have run for the top spot since 1960. They are Nixon (twice), Humphrey, Mondale, G.H.W. Bush, Quayle, and Gore. Only one made it, and he resigned.
Pence’s environmental record strongly suggests his trotting the same path as The Donald. His experience as a congressman, governor and vice president, could make him a more formidable foe of Nature than Trump.
Pence is not only a more polished and experienced politician than Trump; he has a rock-solid relationship with the Republican establishment. Of course, these days membership in the establishment cuts two-ways. Untouchable in his current capacity as Donald’s wing-man, running on his own would likely find him at odds with Steve Bannon.
Clean Energy and the Environment: In the Crosshairs
Public Enmity Number 1
(for high crimes and misdemeanors)
It is no secret President Trump has had clean energy and environmental regulations in his sights at least for as long as he has been running for president. As president, Trump has begun to make good on his promises to roll back federal environmental and clean energy policies and programs. These are among the only promises he has kept during his first ten months in office.
The reason he has kept these particular vows is that he can--alone and without interference from Congress. Much of the Obama-era climate legacy rests upon executive orders. The Clean Power Plan (CPP) and the Waters Rule of the United States (WOTUS), for example, are based upon legislation but drafted by directive.
Presidential orders and memoranda have the standing of law for only as long as the executive author is in the Oval Office. They are an effective but vulnerable means for a president to set national policy in the shade of an opposition Congress. It is as true for Trump as it was for Obama.
Trump’s presidency is coming under increasing attack from establishment politicians. To lighten its load, in an attempt to right the ship, he will step up his attacks on clean energy and the environment.
I am not a psychiatrist, so I can’t really speak to why Trump is Trump. As a veteran observer of politics and people, however, I can tell with near certainty he is the type of politician who seeks elective office to validate himself. A President who has no higher calling threatens the nation and the foundation on which it is built.
There is growing speculation President Trump will be leaving office before the end of his four-year term--either voluntarily or with help from his cabinet or the Congress. Before cries of joy and sighs of relief are uttered, consider how the prospect of his leaving office could cause the worsening of an already bad situation.
This article is not as much about the means of his departure, although discussed, as it is about his motives and what it may mean for clean energy technologies and the environment.
Opinions differ as to what will spark his departure. The three most apparent prompts are impeachment, the 25th Amendment to the U.S. Constitution and voluntary retirement. Two Democratic members of the House have already filed impeachment articles, while a third is waiting in the wings.
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.