Part 1 of Oyez, Oyez spoke of the emergence of a growing number of climate lawsuits looking to forge new foundations upon which to combat global warming. The lawsuits cited took two very different directions. The youthful plaintiffs in the Juliana case are seeking to establish both the federal government’s obligation to hold the nation’s natural resources in a public trust and their constitutional right to a healthy environment.
The cities and counties suing Chevron, ExxonMobil and other of the major oil companies are taking a primarily civil approach alleging the defendants of tortuous acts against their communities and seeking potentially billions of dollars in restitution. In both categories of cases, climate-science is as much on trial as the actions of the defendants.
Part 1 ended with a recap of the climate change tutorial given Judge Alsup as part of the case now pending in the U.S. District Court for the Northern District of California. In the tutorial, the lead defense attorney in the case admitted the UN’s Intergovernmental Panel on Climate Change (IPCC) is spot on regarding the causes and consequences of global warming. Lawyer Boutrous, however, denied that the oil companies could be held liable.
Part 2 expands discussion of both case categories, starting with a Plan B defense by ExxonMobil to turn the liability tables on selected cities and counties by accusing them of lying to bond-holders about the soundness of the economic future facing their facing because of climate change. ExxonMobil’s request of the state court is less like a direct legal defense to the California and New York tort claims and more like an announcement that they are ready to rumble!
The days of constructive political debate and compromise in the legislative and executive branches of government are gone, leaving the courts as the primary venues in which the causes and consequences of global climate change are being debated, and stable solutions sought.
The growing number of climate cases being filed in both federal and state courts is paralleled by the increasing number of legal theories being relied upon to bring them. Today’s actions go much beyond traditional legal challenges, i.e., how an agency went about crafting or rescinding an environmental regulation or whether an emission exceeded the legal limit.
Some cases are looking to expand constitutional protections to guarantee the personal right to live life in a habitable environment. A right that, once established, requires a government response that rises above partisanship.
Other suits seek to recover the costs their communities have incurred because of a company’s knowing disregard of the damage caused by their emission of greenhouse gases—whatever the established legal limit.
The plaintiffs and defendants in climate cases vary and, at times, their roles are reversed. They include individuals of a certain age, federal, state, county and city governments, interest groups of both climate defenders and deniers, business organizations and major oil companies. Joining them as friends of the court (amici) are members of Congress, religious groups and former heads of federal agencies.
The courts were never designed to be the primary venue in which climate defenders and deniers were meant to debate and decide national environmental policy; they have taken on the role by default. There are limits to what the judiciary can consider, decide and do.
This article is the latest in the current series looking to the 2018 midterm Congressional elections as an opportunity to broaden support for federal clean energy and climate policies. Today’s installment addresses alternative facts and how membership in an identity group can impact the way people process climate data.
Not a problem to be solved quickly, climate change must be attended to steadily. Doing so requires forging a workable alliance of Republicans and Democrats—starting in local communities and ending in Capital City.
Fashioning any cross-aisle collaboration in today’s hyper-partisan environment is likely to prove messy. Passions run high on both sides, and there is enmity within. Cross-aisle cooperation requires lowering ideological barriers long enough to get something accomplished. Barriers define and protect, lowering them risks attack by both friends and enemies.
Today’s installment discusses why words matter, looks at some unlikely political pairings, identifies areas of agreement based on stated positions, and adds to the to-do list.
Ours is a nation so divided as to make a substantive national debate about the causes, consequences and required responses to climate change virtually impossible. In its inimitable style, a recent headline in the Onion read: Study: 90 Percent Of Americans Strongly Opposed To Each Other. The story quotes the imagined Babette Randolph: In the questionnaire we administered, nine out of 10 participants indicated they fundamentally disapproved of the actions currently being taken by their fellow citizens.
Although not quite as extreme as reported, the divide in America is real and having a profound influence on how people receive and perceive information.
Group affiliation is so dominant in today’s political arena as to have given rise to a willingness to accept lies as truths--
or at least as good enough for government work.
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.