It is October 30, 2018, do you know where the children in the case of Juliana v. US aren’t? They aren’t in the second day of what had been billed as the “environmental case of the century.” In a last-ditch effort to halt the suit, the Trump administration appealed to the US Supreme Court (SCOTUS) to stop the case before it got to trial.
The Juliana plaintiffs have endeavored over the past three years to establish a constitutional right to a habitable environment and to place the nation’s national resources like land, water, and forests into a public trust under the trusteeship of the federal government. If successful, the case would force the Trump administration to craft and implement a Clean Power Plan (CPP) on steroids and potentially preventing it from giving away the Grand-Staircase-Escalante, Bears Ears and other federal lands and landmarks or opening them up to commercial exploitation.
The October appeal was the second time the Administration asked the High Court to stay the trial. An earlier—essentially similar—request was denied. What happened between the July 30th denial and the October 19th stay was the addition of Brett Kavanaugh to the Supreme Court bench. Kavanaugh filled the seat of retiring Justice Anthony Kennedy. Although a credentialed conservative, Kennedy deviated from his conservative colleagues when it came to the environment.
Had it not been for Justice Kennedy Massachusetts vs. EPA would not have set the stage for the Clean Power Plan and other of President Obama’s legacy climate preserving actions—most of which is being unwound by Trump and company. Massachusetts established EPA’s authority—nee obligation—to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) once it determined they endanger the health and welfare of the nation.
Chief Justice Robert’s stay of the case before trial is generally considered by legal experts as an extraordinary step. Although the same extraordinary step was taken to stay the CPP.
In its initial refusal to stay the case SCOTUS agreed with the Ninth Circuit Court of Appeals rejections of two earlier motions by the government. The appellate court’s rulings were based on procedural matters rather than on the merits of the plaintiffs’ claims. Both courts had indicated the government would have ample opportunities to contest the substance of the allegations and requested redress during and after the trial.
Scarcely any political question arises in the United States that is not resolved,
sooner or later, is a judicial question.
----Alexis de Tocqueville
From Mother Earth's perspective, the most important ballots cast on November 6th could be in the 30 contests for state attorney general (AG). The role played by AGs in the nation's transition to a low-carbon economy is easily ignored in the heat of this year's Congressional elections. Over the past decade or more, however, it has mostly been the states' AG's who have made the difference between implementation and litigation of the environmental regulations flowing out of Washington.
AG's are important not only for who they are but for whom they might become. Today's attorney general may be tomorrow's governor, congressman, senator or administrator of the US Environmental Protection Agency.
Scott Pruitt's election as Oklahoma's top attorney led to his becoming Trump's trusted regulatory hatchet-man. Pruitt earned his conservative creds by suing the Obama admin-istration at least 14 times over environmental issues alone. Recognized as environment's public enmity number one, Trump saw Pruitt as the ideal candidate to take control of the Agency both would prefer to live without. Evidence of the faith Der Donald placed in Pruitt was the length of time it took the president to "accept his resignation," considering the mounting ethics charges. A courtesy Trump was unwilling to accord HHS Secretary, Tom Price.
There are currently 1,023 climate-related law cases listed on the Litigation Chart managed as a joint project of the Sabin Center for Climate Change Law at Columbia University and Coland Arnold and Porter Kaye Scholer, LLP. In 2016 the number of all the US domestic climate lawsuits on the database was 873[i],[ii]
The rising number of cases is mostly a matter of politics. Believers and deniers of global warming fall largely along party lines, according to the Pew Research Center. Representative of the yawning divide between the parties is the Trump administration’s dedication to undoing all of President Obama’s environmental legacy for no reason other than it is Obama’s legacy. The cycle has been repeated before as Clinton’s generally pro-clean energy and environmental administration was followed by Geo. W. Bush's which was considered the least favorable of modern times--a designation that now passes to the Trump administration.
In the past week or two Trumpsters gave climate defenders new reasons to take the Administration to court—of either the legal or public opinion variety. Before letting you in on what types of cases have the best chance of winning in court, I want to update what the Cabal currently in charge of the federal government is up to these days—climate-wise.
1. The Environmental Protection Agency (EPA) is looking to make it easier for coal plants to release mercury into the world where the powerful neurotoxin has been known to damage the brains of infants and children. To accomplish the task, the Administration is proposing to recalculate the costs and benefits of the existing Obama era rule. As is usual for the Trumpsters they are heavily discounting the benefits side of the equation and inflating the cost to coal-fired power plant operators.
The proposed rule change is a slight of hand intended to help coal producers stay in the game—whatever the consequences to the rest of us. If EPA is allowed to get away with the move, it could insulate coal-fired generating plants from the risk and technology review required under Section 112 of the Clean Air Act (CAA). The review is meant to determine whether remaining levels of hazardous air pollutants continue to pose unacceptable risks to public health.
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.