…not all meritorious legal claims are redressable in federal court.
More than four years ago, 21 youthful plaintiffs asked a federal court to rule a habitable environment a protected right under the US Constitution. On January 17, 2020, a divided three-judge panel of the Ninth Circuit Court of Appeals told them they didn’t have standing to pursue their case and that there was nothing the court could do to redress the legitimate harms they had suffered:
Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.
Early on, Juliana was often reported with a wink and a nod giving the impression that it was a feel-good human-interest story about kids. As it survived one legal challenge after another, the case came to be recognized for what it could be—the most important environmental case of all time equal in stature to Brown v. Board of Education (school desegregation), Roe v. Wade (a woman’s right to an abortion), and Obergefell v. Hodges (the right of men and women to marry those they love even if of the same sex).
Democratic members of the House Energy and Commerce Committee have released a detailed “memo” as a prequel to climate legislation they will be introducing under the torturous title of The Climate Leadership and Environmental Action for our Nation’s Future Act (CLEAN Future Act or Act).
The Act’s goal is to ensure that the United States achieves net-zero greenhouse gas (GHG) pollution no later than 2050. Lurking behind the provisions of the proposed legislation are the political motives of its Committee authors—all of whom are Democrats.
The Chair of the House Energy and Commerce Committee, Representative Frank Pallone (D-NJ), has indicated that the whole idea of the draft legislation is to build consensus. With whom do you suppose Pallone would like to build such consensus? I’ll give you a hint—it’s not with Republicans. Not that the chairman would refuse Republican cooperation were it to be genuinely offered.
If you guessed the hoped-for consensus partners are the progressive Democrats in Congress, like Representative Alexandria Ocasio-Cortez (D-NY), you get a gold star on your permanent record. The CLEAN Future Act can be properly viewed as the answer of establishment Democrats to the Green New Deal.
We have met the enemy, and s/he is us.[i]
For much of the decade of the 2010s, I’ve spoken and written about climate change—calling it the greatest threat facing the nation. I was wrong.
The greatest threat is our collective unwillingness to bridge the gaping and deepening divide that separates Republicans and Democrats. As our nation’s climate has grown warmer, our politics have turned colder. (See Figure 1) Where the federal government was once considered a part—albeit an imperfect one—of needed solutions, it is now considered a primary problem.
There is no national policy issue on the table today that does not reflect and suffer from the increasingly hardened differences between the nation’s major political parties.
The political division reflects two opposing Americas—of almost equal electoral strength. The federal government remains in gridlock at a time when concerted action is needed to address climate change and other of the nation’s pressing problems.
As we begin the 2020s, it is critical for Americans—all Americans—to step back for a moment and take stock of what the national body politic has become. As Lee Drutman writes--
National politics (in the US) has transformed from a compromise-oriented squabble over govern-ment spending into a zero-sum moral conflict over national culture and identity.
We no longer trust each other or our institutions, and our collective mistrust is playing out in ways that undermine and upset the balance between the branches of government and the regard paid to them by the governed.
With all eyes on the United Nation’s Committee of the Parties 25 (COP25) climate meeting in Madrid last week, one couldn’t be blamed for missing the reports of former President Obama’s remarks to an audience of young Asian leaders in Kuala Lumpur. The occasion was a conference hosted by his foundation.
What Mr. Obama had to say helped clarify for me why his climate legacy is barely spoken of by today’s youth activists or the Democratic Party’s crop of presidential candidates—including his own vice-president.
Predictably, Mr. Obama was asked by his young audience to comment on the Paris Climate Agreement (Agreement), offer his insights on the Madrid meeting, and recommend ways forward from today.
As reported by AP News and other reliable outlets, Mr. Obama admitted that the global response to the climate emergency was already too little, too late for the world not to have already experienced some of the adverse effects of Earth’s warming:
…there’s gonna have to be some adaptation that’s going to take place. The oceans will be rising, and that is going to displace people. And so, we’re going to anticipate and care for some of the consequences of that, including large-scale migration and disruptions that are going to be very costly.
The former president also spoke of his satisfaction in knowing that just by setting up the mechanism (the Agreement), we had created the ability to [over time] turn up the standards, turn up the demands. Send a signal to businesses so that they started investing in more clean energy because they saw change coming.
It appears that presidential press secretaries are not the only ones doing headers into the hedges to avoid having to answer potentially embarrassing questions. Sean Spicer’s dive into the history books made for great journalistic sport and allowed Melissa McCarthy to show-OFF her considerable comedic talents.
Spicer’s hiding in the greenery is not exactly what’s implied by the term hedging. However, as I will explain a bit further on, companies and organizations like Google, Shell, Bank of America, the US Chamber of Commerce, and Amazon are doing their own version of the Spicey--a hedging maneuver they would have preferred to remain hidden from journalists and the climate defense community. Maneuvers the climate community should wish them not to engage in in the first place.
Investors understand hedging to be a strategy designed to offset a potential loss on one investment by purchasing a second investment that is expected to perform in the opposite way. Most of us engage in the practice whether we’re aware of it or not. The purchase of health or auto insurance, for example, is a form of hedging.
Hedging in politics is not very different from pairing investments or paying for insurance. The goal in each of the cases is to offset a potential loss through a countervailing action. In politics, the loss usually being hedged against is access rather than dollars.
President Trump divides just about everything political he or his administration touches. The latest industry Trump has caused to turn against itself is automaking.
Since Day 1 of the Trump presidency, the auto industry has been hoping to re-negotiate the deal it struck with the Obama administration on auto and light truck fuel efficiency standards (CAFE) for the period 2021 through 2025. The industry thought its wishes were answered when in April 2018 the then-EPA Administrator Pruitt announced the Trump administration would be rolling back the auto efficiency rule that the Obama administration had negotiated with the automakers in 2010.
Not long after the announcement, however, wisher’s remorse began to settle on the sector. It was clear from the beginning that the dialogue between the California Air Resources Board (CARB) and the administration would not go well. The only thing the two sides seemed to share was antipathy for each other.
Without much warning, the administration cut off any further discussions with CARB in February 2019 and announced it would be going ahead with its Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule that freezes the standards through 2025 at the 2020 level—a number much below what the industry is both capable and willing to meet.
On the day Greta Thunberg gave her emotion-filled speech at the United Nation’s (UN) Climate Summit, another historic event involving the Swedish activist and 15 other youthful climate hawks—representing 12 countries--took place. The filing of the first-ever legal complaint about climate change to the UN’s Committee on the Rights of the Child. The communication is titled Sacchi et al. vs. Argentina, et al.
Like the plaintiffs in the case of Juliana vs. US, the young petitioners—all ranging in age between 8 and 17—are seeking to protect themselves and future generations from the harsh consequen-ces of global climate change. Impacts like extreme droughts and rising sea levels that most of the world’s scientists have been warning of for decades; warnings that have gone mostly unheeded in terms of needed state actions.
The Republic of the Marshall Islands, home to three of the petitioners, formally declared a National Climate Crisis on September 30, 2019. A low lying archipelago in the southern Pacific Ocean, portions of the Marshall Islands were the site of 67 nuclear weapons tests by the United States, including the 15-megaton Castle Bravo hydrogen bomb test that produced significant fallout in the region.
Having survived those tests, the Marshall Islands now face the prospect of being uninhabitable by 2050—swallowed by the waters that have sustained its populations for hundreds of centuries. Its 29 atolls average only 6.5 feet above sea level.
This marks the addition of a new audio feature on the Civil Notion site, which I'm calling A Piece of My Mind.
In this first episode, I examine the alchemistic role of the climate youth movement in turning base political words into precious political will.
A year ago, there was no debate in Congress about climate change. Now conservative Repub-licans are being forced into a dialogue they had hoped to avoid about a problem they've been unwilling to admit even exists. The Democrats, for their part, have embraced climate change as a central theme of their 2020 political campaign. What’s changed is the entrance of the youth climate movement onto the scene.
Lead image courtesy of Jean Beaufort/public domain
If the tens of thousands of fires burning in the Amazon and Trump’s disdain for climate science and environmental regulation were not bad enough in their own right, imagine how bad they could be together?
It’s being reported that Brazil’s environmental minister, Ricardo Salles, will be meeting with representatives of the Competitive Enterprise Institute (CEI) at EPA headquarters on Sept-ember 19th. CEI is a leading denialist organization whose director for energy and environment, Myron Ebell, headed-up Trump’s EPA transition team.
CEI and company are increasingly alone in their bald denial of climate science and the impacts of global warming. Even organizations like the US Chamber of Commerce are at least willing to acknowledge that the global climate is changing and that human activities contribute to those changes.
Brazil’s recently elected populist president, Jair Bolsonaro, is a fan-boy of President Trump. As is his usual practice, Trump embraces anyone who strokes his ego:
I have gotten to know President @jairbolsonaro well in our dealings with Brazil. He is working very hard on the Amazon fires and in all respects doing a great job for the people of Brazil – Not easy. He and his country have the full and complete support of the USA!
According to reports, Bolsonaro told his supporters to call him Captain Chainsaw. He also wears with pride the tag Trump of the Tropics.
This is the second article in the Civil Notion series--Erasing Trump’s Environmental Legacy—about the barriers a Democratic victor in the 2020 presidential election—President X— will face in an effort to put a national climate defense plan on the books.
As I had written in the first article of the series, undoing the damage done by Trump to the environment and the regulatory framework that protects it will prove more difficult—certainly more time consuming—than climate defenders imply in their various policy proposals.
The way forward for any climate defense plan—moderate or progressive—will be cluttered with the flotsam of the Trump administration, e.g., rolled back regulations, extant lawsuits, and the loss of the many experienced government professionals needed to implement a pro-environment agenda.
Unfortunately, there’s no magic wand President X can wave that will immediately restore critical protections and reverse the damage done to the environment by Trump’s policy actions. For example, the administration’s elimination of efficiency standards covering nearly half the lightbulbs currently on the market will increase annual energy usage by an estimated 80 billion kilowatt-hours—an amount roughly equal to the electricity needed to power all the households in Pennsylvania and New Jersey.
Erasing Trump’s environmental legacy is going to take time. A return to the Obama standard would undoubtedly require a new rulemaking—a time-consuming process that would likely be met with legal challenges once the final rule came into force. (See Figure 1) Rulemaking is a time-intensive process—made longer by lawsuits waiting at the end of it.
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.