As Congress leaves for its August recess and prepares for the coming midterm elections, I thought it a good time to update readers on the current goings-on in Capital City and their impact on climate-related programs and policies.
While Trump continues to shock and awe the nation and his staff with tweets and new orders , Congress is facing some important legislative deadlines, many of which will likely end up in can kicking until after the elections. The stars still favor a Democratic takeover of the House and maintenance of the Republican’s Senate majority—slim as it may be.
I don’t recommend anyone betting their farms on those predictions. These are unusual political times and are likely to stay that way at least through the 2020 national elections.
The Administration continues its bid to pack the federal courts with as many conservative judges as the Republican Senate is willing to confirm. In addition to sn historically high number of federal district and appellate court vacancies to fill, Trump has been given a second chance to nominate a Supreme Court (SCOTUS) justice. His choice of Judge Brent Kavanaugh to fill the shoes of Justice Kennedy is playing well with most Republicans—whether Trump’s core supporters or establishment Senators. Kavanaugh has been a judge on the Court of Appeals for the District of Columbia Circuit--considered the nation’s second most important court after SCOTUS and the High Court’s AAA farm club.
Kavanaugh is unlikely to be a pro-environment justice, although he believes climate change is real and that Congress should do something about it. As discussed further on, judicial nominations are also a priority of Senate Majority Leader McConnell and are one of the few areas in which he and Trump are in actual lockstep.
The biggest environmental news of the past few months was the resignation of EPA Administrator Pruitt. After the 12th or 13th ethics charge was lodged against him, Senate and House Republicans started to abandon ship. After the 15th or 16th, The Donald seemed to agree and fired him—despite how much he appreciated the man’s zeal to undo Obama’s entire environmental legacy.
The nation remains closely divided in its view of President Trump. Many on the Right tout him a savant—wise in a way no other chief executive has ever been. An anti-establishmentarian for our time, if you will. An almost equal number on the Left question his intellect and wonder how he ever managed to pass civics class, let alone, how he became the 45th President of the United States.
Whatever your view of The Donald, his innate understanding of where loopholes in the governance system reside and how to capitalize them to his advantage should not be under-estimated. His perception and use of a president’s national security powers is unprecedented both in terms of frequency and the variety of applications. They are, as well, only vaguely defined in law and practice.
Trump has invoked them to impose tariffs on foreign aluminum and steel, threaten restrictions on the import of foreign autos and slow immigration. “National security” has been used by his administration, both successfully and unsuccessfully to justify suspension of environmental regulations and maintain uneconomic coal and nuclear-fueled electric generating units.
The reticence of a Republican Congress to check or even challenge his use of national security has in the words of Peter Harrell, an adjunct senior fellow, at the Center for a New American Security:
…upended longstanding international agreements and stretched the definition of “national security”
beyond the intent of Congress in the decades-old statutes that Trump has relied on. Congress needs to
restore its historic role on trade and economic policy and by reforming national security authorities to limit their use to pursue economic policy.
Once more unto the breach, the attorneys representing the youthful plaintiffs in Juliana v US were back before a judge defending their clients’ right to have their day in court. The case was first filed in the U.S. District Court of Oregon in August 2015. Since that time, the plaintiffs have faced what seems like a perpetual series of motions by US Department of Justice attorneys asking that the case be thrown out either on procedural grounds or for lack of legal sufficiency.
The July 18th hearing was on the government’s Motions for a Summary Judgement (MSJ) and A Judgement on the Pleadings (MJP). With one exception—dismissal of President Trump from the lawsuit—the government attorneys appeared to be rearguing issues rejected in March by a 3-judge panel of the Ninth Circuit Court of Appeals.
This most recent hearing was before Federal District Court Judge Ann Aiken. It marked the first time since September 2016 that Judge Aiken heard arguments in open court. Aiken is the trial judge in the case that is set to begin on October 29, 2018.
It is easy enough to appreciate the Administration’s desperately trying to avoid allowing the climate science to be presented at trial. The plaintiffs’ victory in the case would establish a constitutional right to a habitable environment and place upon the federal government the responsibility of holding in trust the nation’s natural resources. Juliana will be to the environment what Brown v Board was to public education.
Should the plaintiffs prevail, federal support for fossil fuels in its many forms, e.g., tax incentives and access to federal onshore or offshore properties for exploration and extraction, would need to be phased out and replaced by a clean power plan on steroids. No longer a matter of party loyalties an established constitutional right to a sustainable environment would be to partisan politics what Alexander’s blade was to Gordius’ obdurate knot.
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.
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.