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.
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.