(This is the fourth installment in the Civil Notion series on the impact of the 2018 midterm elections on national climate policy. The previous articles are at www.civilnotion.com)
"One of the problems that a lot of people like myself, we have very high levels of intelligence, but we’re not necessarily such believers. As to whether or not it’s man-made and whether or not the effects that you’re talking about are there, I don’t see it. " -- Donald John Trump on climate change
November’s midterm election purged Congress of moderate Republicans leaving in its wake hard-core Trumplicans willing to follow their namesake on to the slag heap of hyper-partisanship. Although I remain a man of the middle—still believing in compromise and collaboration—I recognize the near impossibility of finding common ground in the polluted political environment now surrounding Congress—made worse by the bleating of a petulant president. I’m far from alone in my judgment.
A Gallup poll was taken a week after the election and showed that Americans are largely pessimistic that President Donald Trump and the Democrats in Congress will cooperate much over the next two years once Democrats assume control of the House of Representatives in January. The poll compared the 2018 election with the last time Democrats won control of the House. It too was a time when the blood of partisans ran hot.
What Just Happened?
The Trump administration has once again filed a motion to dismiss Juliana v. United States before the trial even begins. Although rebuffed for the second time by the US Supreme Court (SCOTUS) on November 2, 2018, government attorneys thought to go back to the United States Court of Appeals for the Ninth Circuit with the same hackneyed request to deny the youthful plaintiffs in the case their day in court—hoping for a different outcome.
What is it they— whomever they are—say about insanity and doing the same thing over and over again expecting a different outcome? In the case of Juliana, the Administration’s attorneys are not so much insane—as they are fearful of what the case might mean to Trump’s efforts to roll back environmental protections to a time before Nixon and peddle coal to developing nations.
On November 5th Administration lawyers filed their latest emergency dismissal motion. On November 8th the Ninth Circuit Appeals Court again halted the case pending its decision on the motion. In the November 8th order the appellate court “invited” the trial court judge, Ann Aiken, to reconsider her earlier decision denying the government’s request for an interlocutory review. On November 21st the trial court issued an order certifying Juliana for an interlocutory appeal.
Now that the district (trial) court has certified its orders in Juliana, the Ninth Circuit again faces the question of whether the case needs to go to trial. Interlocutory reviews by appellate courts are matters of judicial efficiency in that the level of legal doubt surrounding a plaintiff’s cause of action is so high as to suggest to the trial judge that a case would be a waste of the court’s and litigant’s time and resources. In Juliana’s case, the doubted matter of law is whether the plaintiffs have a constitutional right to a habitable environment.
Such certifications are “exceptions rather than the rule” as they preempt the role of the trial court to hear and decide questions of fact and law. As a first of its kind lawsuit, it is natural for there to be some doubt about the legal/constitutional basis of the plaintiffs’ suit. The Ninth Circuit Court of Appeals and SCOTUS have both recognized the novelty of the youthful plaintiffs’ claims as has the trial court.
(This is the third installment in the Civil Notion series on the impact of 2018 midterm elections on national climate policy. The previous articles may be seen here and here.)
Youth ages, immaturity is outgrown, ignorance can be educated, and drunkenness sobered, but stupid lasts forever.
When the 116th Congress opens for business in January, it will mark the first time in a decade that the House of Representatives will be controlled by a Democratic majority. Like my neighbor’s Basset Hound who just caught the postal truck, it appears the Democrats are not quite sure what to do with the House now that it is theirs.
November’s balloting served to purge the Republican ranks of its more moderate members in Congress. Some of the more establishment Republicans like Senator Flake (R-AZ) chose retirement over forced fealty to Trump. Others like Representative Curbelo (R-FL) who had distanced themselves from The Donald lost their bid for re-election.
It was a much different story for the Democrats. Sheryl Gay Stolberg describes the incoming freshman class of House Democrats as the most diverse, most female freshman class in history — a group of political neophytes, savvy veterans of the Obama and Clinton administrations, as well as the first Muslim women and Native American women ever elected to Congress. Although ideologically diverse, many of the first-timers share a common concern for the environment and a suspicion of the establishment—incarnate in the form of Nancy Pelosi.
Some 17 or more incoming and incumbent House Democrats have vowed to oppose Pelosi’s assuming the Speaker’s chair for the second time in her career. They, like Trump, have used the Californian as a convenient foil post in campaign speeches although for very different reasons. Trump waves Pelosi in front of his core supporters much like a matador flaps his cape before a bull—to much the same effect. House Democrats in opposition see her as an impediment to putting a progressive agenda in place—much like Sander’s supporters saw Clinton in 2016.
Energy and the environment are playing a prominent role in the Democratic leadership debates with all sides agreeing that climate policy should be near the top of the House agenda in the two years leading up to the 2020 elections. Pelosi along with Democratic members likely to move into leadership positions on key committees have wasted no time in singling out climate as a priority.
Ranking Democrats expected to take over as chairs of their existing committees—Science, Space, and Technology’s Eddie Bernice Johnson (D-TX), Energy and Commerce’s Frank Pallone (D-NY) and Natural Resources’ Raúl Grijalva (D-AZ)—have indicated they would be calling hearings shortly after the 116th Congress comes to order. Pelosi has expressed her support for resurrecting a special committee on climate change that was disbanded in 2011 by the then newly elected Republican House majority.
(This is the second in a series on the impact of the 2018 midterm election on federal climate policies leading up to the 2020 presidential election. The first installment may be found here.)
Dateline November 14, 2018
The most contentious and expensive midterm election in US history is almost over. When the dust finally settles it will have ended pretty much as predicted. The incoming 116th Congress will open for business— divided. Democrats will control the House Republicans the Senate. It is a fitting reflection of the state of the union.
The election results are such that progressives and populists are each spinning them to advantage—with varying degrees of success. Within hours of the polls closing, Trump began a victory lap evaluating his efforts as history-defying. For a change, there is some truth in what The Donald is saying. It was just the third time the party in the White House gained Senate seats in a midterm election. The last time was 1914—Wilson was president. That same year the Democrats lost 61 House seats—a far more significant loss than #Trumplicans have just experienced.
Typical of the nation’s Narcissist-in-Chief Trump congratulated the winners for having embraced him. A day after the election he taunted the losers who refused to wrap their arms around His Greatness and what he represents. To Mike Coffman (R-CO) Trump merely said “too bad Mike.” The Grand Wizard of the White House was sharper in his shout-about to Representative Mia Love (R-UT)--the only Republican woman of color serving in the current Congress. "Mia Love gave me no love. And she lost. Too bad. Sorry about that Mia.
The Democrats did their own bit of crowing. The current Minority Leader and likely next Speaker, Nancy Pelosi, alluded to the results as the dawning of a new day for America. Judging from the row between Trump and a CNN reporter, the forced resignation of Attorney General Sessions, and appointment of an Acting Attorney General that many believe uniquely unqualified, it is just another day in America in which Trump doubles down on being Trump.
How the environment fared in the midterms, like most things these days, is up for debate. Much depends on one’s perch and expectations. Although pleased with the Democratic takeover of the House, most reactions from the climate defense sector were subdued in tone but suggested there might be better days ahead in Capital City. I have my doubts.
The 2018 midterm elections will be memorialized as among the most contentious in modern history. Charges and counter-charges of racism, lies, corruption, and sexual predation are not all the lead up to November’s balloting will be remembered for, however. The 2018 elections are also proving to be the most expensive midterms to date. (See Figure 1)
By any standard, we’re talking big bucks here. Representative Beto O’Rourke (D-TX), by last count, has raised over $69 million in his effort to defeat Senator Ted Cruz (R-TX). In defense of his seat, Cruz has raised over $40 million.
Democratic House candidates have raised nearly $1 billion compared to the Republican's $637 million. The non-partisan Center for Responsive Politics estimates total spending by the parties, candidates, and political action committees will be in excess of $5.2 billion by the time the midterms are over.
Conspicuous by their presence are climate-defending organizations and individuals. The League of Conservation Voters (LCV) is expecting to drop $60 million into Democratic campaign coffers in state and Congressional races. Move.Org Political Action has raised $25.5 million and spent $21 million on Congressional races through the middle of October.
(This is an update of the earlier article Juliana vs. US: Stayed but Not Stopped! For Children of All Ages)
November 2, 2018.
Late this afternoon the US Supreme Court (SCOTUS) released a brief 3-page order denying the Trump administration’s motion to dismiss the Juliana case in advance of trial. The allowance to proceed comes as something of a surprise as it follows Chief Justice Roberts’ stay of the trial just days before it was scheduled to begin in an Oregon federal district court.
I and others saw Roberts’ stay of the trial as a sign that the five conservative members of the High Court didn’t think the case could stand on its merits. I had written earlier that Chief Justice Roberts’ stay of the case before trial is generally considered as an extraordinary step. A step that was taken several years earlier by the Court preventing the Clean Power Plan from going into effect.
It was the second time Administration attorneys had asked SCOTUS to dismiss the case. The first denial of the government’s motion was the last official act of Justice Anthony Kennedy. Kennedy had provided the swing vote in several landmark environmental law cases including Massachusetts vs. EPA.
The appointments of Justices Gorsuch and Kavanaugh to fill the seats of Justices Scalia and Kennedy were thought likely to lead to a grant of the second (mandamus) motion that would have effectively served to stay the case permanently. As it turned out, a majority of the Court confirmed its previous opinion—that dismissal on the merits was premature—and the views of the trial court and the Ninth Circuit Court of Appeals. Justices Gorsuch and Thomas would have granted the government's request.
Friday’s order allows the case to go to trial; it is not an opinion on either the merits of the plaintiffs’ allegations and arguments accusing the federal government of failing in its constitutional obligation to protect them from the ravages of global warming. Neither is the order affirmation of a federal court's ability to redress plaintiffs’ grievances.
The plaintiffs will now ask the federal court in Oregon to set a new trial date. The trial is expected to take up to two months. It will be the first time that climate science is called to the witness stand. Once the trial begins Administration lawyers are likely again to seek a dismissal claiming some variation of its previous argument that the court is addressing a political question that can only be answered by Congress and the president.
It may be years before a final decision in the case will be 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.