Through the magic of YouTube TV, I was able to sit in on the oral arguments in the latest episode of Juliana v. United States. The lawsuit is being brought by 21 plaintiffs ranging in age from 10 to 21. It accuses the federal government of causing them harm by failing to protect them adequately from the effects of global warming. Plaintiffs are asking the court to order the federal government to do something to redress the problem, e.g., regulating carbon emissions from power plants and fossil fuel extraction on federal lands.
The case was filed in 2015 when Obama was still in power—which may seem a bit ironic given what he tried to do with the Clean Power Plan (CPP) and such. Trump and company inherited the case when they took over the federal government—which seems only just given the vehemence of their denials that anything nasty is happening climate-wise and their unwinding of Obama era protections.
Monday’s arguments were not about the substance of the Juliana case but the Oregon District Judge’s November 2016 opinion affirming plaintiffs’ standing to bring the suit and setting a February 2018 trial date. Technically the U.S. Department of Justice (DOJ) complaint was against the Oregon [Federal] District Court, hence the case title United States v. USDC-ORE.
The hearing was before a 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit. The DOJ was asking the court to issue a writ of mandamus reversing Judge Aiken’s order allowing the case to be heard. Of the three judges hearing the case, two were appointed by President Clinton and one by President Reagan.
If the government prevails at this point, then Juliana v. United States will be halted in its tracks, pending what I would call a “Hail Mary Reprieve” by the U.S. Supreme Court (SCOTUS).
If, however, District Court Judge Aiken’s opinion is upheld, then it will arguably be on its way to becoming the most important environmental case of the century—perhaps of any century.
Part 1 of the Here Comes the (Trump) Judges series began with a discussion of the increasingly pivotal role federal courts are playing in determining national environmental and climate change policies and resolving the conflicts between defenders and deniers of mainstream climate science.
The authority of Article III courts extends to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (Article III/Section 2)
Today’s part continues the discussion highlighting the nominating and confirmation process for federal judges and justices of the Supreme Court. The process has become more one-sided in recent years. Today’s article also introduces readers to some of the (mostly white) men Trump has appointed and the principal group behind their nominations.
Lifetime judicial appointments are intended to insulate judges and justices from political pressures. It is a tried and reasonably true principle permitting federal benchwarmers to decide cases and controversies on their legal merits without having to worry about being fired by political bosses.
Were it not for lifetime tenure, it is more than likely that the “Mexican” U.S. District Court Judge candidate Trump railed against would have been sent back to where he came from—Indiana—by President Trump.
I say likely not only because Judge Curiel made a decision in the Trump University case The Big D didn’t like, but because he was an Obama appointee. President Trump has exhibited a marked dislike for anything Obama—particularly environmental protections and a willingness to acknowledge global warming as a problem.
This begins a new series of commentaries on the impact the Trump presidency and the current Republican Congressional majorities are having on federal climate change policies. The emphasis of the series is not on executive branch actions to revise and rescind existing environmental regulations nor on Congressional efforts to amend or to abolish current climate-related laws—although these actions will be discussed.
The impacts I particularly wish to address through the series stem from the changing of the judicial guard in the courts established under Article III of the U.S. Constitution[i], which states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (Article III/Section I)
There are three primary levels of Article III courts (see Map for districts/circuits):
Other Article III courts include bankruptcy and those of specific jurisdiction like the United States Tax Court and the United States Foreign Intelligence Surveillance Court (FISA).
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.