Supreme Court Tells White House ‘No,’ As A Buncha Kids Sue The Government Over Global Warming
—from an article by Alex Parker
This is an update of an article published 1 August 2018
Since the US Supreme Court’s (SCOTUS) July 30th denial of the federal government’s motions to dismiss the case of Juliana vs. US, the plaintiffs and their attorneys have been preparing for trial—the one the Trump administration had hoped to avoid and that others are calling the trial of the century.
Barring a last-minute reprieve from the court, the Trump administration must now stand in open court and defend itself against the charge they are denying the 21 youthful plaintiffs in the case, their constitutional right to a habitable environment. In what appeared to be another effort to push back the trial date, government attorneys complained to Magistrate Judge Thomas Coffin that they thought themselves unable to depose all 21 plaintiffs before the trial on October 29, 2018.
Judge Coffin reminded Administration attorneys they had earlier taken a pass on opportunities for pre-trial discovery—presumably expecting to prevail in their dismissal motions. Coffin viewed the August 16th status report as a ham-handed attempt to stall the case; a tactic he said he hadn’t encountered before as a judge.
Yesterday I began a discussion on giving nonhuman beings adjudicatory rights to be represented in courts of law. I introduced readers to a horse named Justice and a Celebes ape who goes by the name Naruto. Justice, through the Animal Legal Defense Fund (ADLF), seeks standing to sue his previous owner for cruelty and neglect and is asking the court to award him $100,000 to cover medical costs and living expenses. The previous owner has already pled guilty to criminal neglect.
Naruto’s case was about copyright law. While fiddling with a photographer’s equipment in the jungles of Indonesia, the ape took a selfie. Acting on his behalf PETA, the People for the Ethical Treatment of Animals, tried to establish Naruto’s right to hold the copyright as its author.
These are among a growing number of animal rights cases. On a parallel track, are efforts both in the US and abroad to give Nature, e.g., rivers and forests, similar adjudicatory rights.
Part 2 continues the discussion reviewing what some other countries have already done to provide nonhuman beings with the right to enter a courtroom. The article concludes linking these types of cases to combatting climate change and the need for Congressional action.
A Horse Is a Horse of Course, Unless Given the Right to Sue— Which Could Be Good for the Environment
The legal “industry” is much like any other it needs to innovate to stay current. For lawyers it often means finding new—at times called novel—theoretical approaches to accomplish a desired outcome. Over the past several years I have written about law cases premised on rarely used or untested legal theories. These efforts have included citizen cases against state and federal governments to establish the constitutional right to a habitable environment, i.e., Juliana v US, and negligence suits by state and local governments against oil companies.
Within recent months I’ve been bumping into an increased number of animal rights cases. Last week a horse named Justice was given 15 minutes of fame in the Washington Post (WaPo). The article triggered an “ah/hah” moment; today’s article is the result.
The article focuses on the legal rights of nonhuman beings—primarily animals and Nature[i]. There is an active link between the protection of animals—human and nonhuman--and safeguarding their habitats as well as our own. Expanding the legal rights of animals and allowing suits by attorneys and organizations on behalf Nature will help to make certain that the inanimate objects, which are the very core of America's beauty, have spokesmen before they are destroyed.
Before dismissing the discussion as a tree-hugger’s induced fantasy, note that there are already legal rights given to nonhumans. Two primary examples are corporations and ships—both are treated in law as “persons” for adjudicatory purposes. There are others. To an extent animals and natural resources are already recognized as “persons” with standing to sue in a court of law. Still, relatively new ideas, the rights of animals and Nature are emerging and expanding legal concepts.
I admit that most of my musings treat Republicans worse than Democrats when it comes to discussing what's afoot in the worlds of climate change and clean energy. The left-leaning tilt of my writings, however, is more a function of my concern for the environment than it is representative of loyalty to any party.
I take some pride, in fact, in not being loyal to any party and willing to vote for the candidate whose views on the environment and other issues, e.g., justice, most nearly reflect my own. In the name of fairness and in memoriam of the Zapple Doctrine, I am turning my attention today to the Democrats and what I believe is their abandonment of the environment in the Age of Trump—starting with a recent article in the Washington Post (WaPo) with the subheading:
When's a good time to talk climate change? Trump officials say: Not during a natural disaster.
The official in question is Secretary of the Interior Zinke whose anti-environmental stance is well-documented. The occasion of his refusal to discuss climate change was his visit to Northern California and the devastating Carr Fire.
There’s no disputing Zinke denies any connection between global warming and the increased frequency and severity of California forest fires. Typical of the man and the Administration he belittled the environmentalists for drawing a connection with hotter and longer summers and the past several years of devastating forest fires in California and elsewhere in the world, e.g., Portugal.
What I do dispute is the article’s claim that Democrats and their allies in the environmental movement, on the other hand, use the disasters as opportunities to bring up global warming. Although true of climate defenders, when it comes to Democrats not so much.
Clean car rules in California, as unpopular as they are with oil companies and auto manufacturers are the clearest opportunity for federal preemption. It is consistent with Trump’s rollback promises and carries a low threat level with core supporters...
--J. B. Stronberg/2017
It has been a busy couple of weeks for Trump and company in the habitable environment department. Spoiler Alert: Mothers and fathers lock up your children—at the least buy them gas masks and hazmat coveralls.
First, the Administration rolled out its proposed rollback of Obama era fuel efficiency and emission standards for cars and light trucks—otherwise known as Corporate Average Fuel Efficiency (CAFÉ) The proposed new rule would require no further mileage efficiencies for new cars and light trucks beyond 2020. While they were at it, Trump and company also proposed smacking down California’s ability to set a more strident emissions standard than the federal government.
Second, Comrade Donald’s EPA (Environmental Polit Agency?) has proposed a framework that will open the US market to new uses for asbestos. The proposed plan was published in the Federal Register at the beginning of June as a Significant New Use Rule (SNUR). Why “comrade” Donald will become apparent in a bit.
Under the Toxic Substances Control Act (TSCA), the EPA is authorized to determine whether the use of a chemical is significantly new, i.e., employed in other than the usual manner. In the case of asbestos, which contrary to the opinion of many has NOT been banned in the US, a new use would include being an ingredient in adhesive sealants or floor tiles.
Both the rollback of the CAFE standards and the new asbestos rule are illustrations of what has become of US climate policies in the Hands of Trump—albeit in very different ways. Of the two announcements, the administration’s proposed freeze of the mileage-per-gallon (mpg) at the 2020 levels will have the most negative consequences on both the nation’s environment and economy. The decision reflects the administration’s willingness to dismiss climate-science and Trump’s vow to undo the entirety of President Obama’s environmental legacy.
The asbestos case is not nearly of the same scope as CAFE in terms of either the environment or the economy. What it does show, however, is an administration incapable of even doing something potentially right because of the tone-deafness of its chief executive. To understand the meaning of this is to appreciate some of the history leading up to both the announcements.
Supreme Court Tells White House ‘No,’ As A Buncha Kids Sue
The Government Over Global Warming
Three strikes and the Trump administration is now out—or more accurately “in.” Trump and company have now been told by the US Supreme Court in a very brief 5-4 decision that they must stand in open court and defend themselves against the charge they are denying the 21 youthful clients in the case their constitutional right to a habitable environment.
The High Court’s decision is of historical significance and accurately cast in terms of firsts and lasts. It will be the first-time climate-science is debated in open court—likely the only forum in these partisan times in which global warming can be honestly and fairly debated.
The plaintiffs’ victory in the case would be the first in the US to 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.
The July 30th decision may have been the last Supreme Court case in which Justice Anthony Kennedy will have tipped the decision in favor of the environment, much as he did in Massachusetts v EPA and Rapanos v US—the cases that led respectively to the Clean Power Plan (CPP) and the Waters Rule of the US (WOTUS). WOTUS and the CPP are among the most litigated environmental regulations in history.
I say may have been because Monday's decision didn’t indicate how each of the justices voted. Given the history of each of the justices and the need for five of them to have agreed on the decision, it is a reasonable guess. The decision read in part:
The Government’s request for relief is premature and is denied without prejudice.
The High Court’s decision followed two by the U.S. Court of Appeals for the Ninth Circuit that similarly refused stopping the suit from going forward or summarily dismissing it even before it was heard in open trial in the Oregon Federal District Court.
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.