The problem deserves a solution on a more vast scale than can be supplied by a district judge
or jury in a public nuisance case[i].
If ever there was a case that called out for judicial intervention and a court to answer the call, it is Juliana v. US and the Ninth Circuit Court of Appeals. And yet, after four and a half years of filings, a divided three-judge panel of the Ninth Circuit Court of Appeals told the 21 young plaintiffs in Juliana, they didn’t have standing to pursue their case. All three judges on the panel were ap-pointed to the federal bench by President Obama.
Over the past two decades, the number of climate-related law cases has been on the rise. Why is not difficult to discern.
The failure of political leaders—particularly at the federal level—to heed the growing body of scientific evidence that demands aggressive action to stem the rise of global temperatures has forced climate activists to seek judicial intervention. The courts are proving difficult to convince, however, for reasons having nothing to do with the science. In fact, the opposite is true. Most of the judges who have heard Juliana and other recent cases, as described below, have expressed a solid belief in the causes and consequences of Earth’s warming and the urgent need to defend against it.
Juliana is one of a group of novel theory law cases. The suits vary in the redress requested and the legal strategies employed. For example, cases like Juliana look to expand the public trust doctrine and make a habitable environment a protected right under the due process clauses of the US Constitution.
…not all meritorious legal claims are redressable in federal court.
More than four years ago, 21 youthful plaintiffs asked a federal court to rule a habitable environment a protected right under the US Constitution. On January 17, 2020, a divided three-judge panel of the Ninth Circuit Court of Appeals told them they didn’t have standing to pursue their case and that there was nothing the court could do to redress the legitimate harms they had suffered:
Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.
Early on, Juliana was often reported with a wink and a nod giving the impression that it was a feel-good human-interest story about kids. As it survived one legal challenge after another, the case came to be recognized for what it could be—the most important environmental case of all time equal in stature to Brown v. Board of Education (school desegregation), Roe v. Wade (a woman’s right to an abortion), and Obergefell v. Hodges (the right of men and women to marry those they love even if of the same sex).
Democratic members of the House Energy and Commerce Committee have released a detailed “memo” as a prequel to climate legislation they will be introducing under the torturous title of The Climate Leadership and Environmental Action for our Nation’s Future Act (CLEAN Future Act or Act).
The Act’s goal is to ensure that the United States achieves net-zero greenhouse gas (GHG) pollution no later than 2050. Lurking behind the provisions of the proposed legislation are the political motives of its Committee authors—all of whom are Democrats.
The Chair of the House Energy and Commerce Committee, Representative Frank Pallone (D-NJ), has indicated that the whole idea of the draft legislation is to build consensus. With whom do you suppose Pallone would like to build such consensus? I’ll give you a hint—it’s not with Republicans. Not that the chairman would refuse Republican cooperation were it to be genuinely offered.
If you guessed the hoped-for consensus partners are the progressive Democrats in Congress, like Representative Alexandria Ocasio-Cortez (D-NY), you get a gold star on your permanent record. The CLEAN Future Act can be properly viewed as the answer of establishment Democrats to the Green New Deal.
We have met the enemy, and s/he is us.[i]
For much of the decade of the 2010s, I’ve spoken and written about climate change—calling it the greatest threat facing the nation. I was wrong.
The greatest threat is our collective unwillingness to bridge the gaping and deepening divide that separates Republicans and Democrats. As our nation’s climate has grown warmer, our politics have turned colder. (See Figure 1) Where the federal government was once considered a part—albeit an imperfect one—of needed solutions, it is now considered a primary problem.
There is no national policy issue on the table today that does not reflect and suffer from the increasingly hardened differences between the nation’s major political parties.
The political division reflects two opposing Americas—of almost equal electoral strength. The federal government remains in gridlock at a time when concerted action is needed to address climate change and other of the nation’s pressing problems.
As we begin the 2020s, it is critical for Americans—all Americans—to step back for a moment and take stock of what the national body politic has become. As Lee Drutman writes--
National politics (in the US) has transformed from a compromise-oriented squabble over govern-ment spending into a zero-sum moral conflict over national culture and identity.
We no longer trust each other or our institutions, and our collective mistrust is playing out in ways that undermine and upset the balance between the branches of government and the regard paid to them by the governed.
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.