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.
As Congress leaves for its August recess and prepares for the coming midterm elections, I thought it a good time to update readers on the current goings-on in Capital City and their impact on climate-related programs and policies.
While Trump continues to shock and awe the nation and his staff with tweets and new orders , Congress is facing some important legislative deadlines, many of which will likely end up in can kicking until after the elections. The stars still favor a Democratic takeover of the House and maintenance of the Republican’s Senate majority—slim as it may be.
I don’t recommend anyone betting their farms on those predictions. These are unusual political times and are likely to stay that way at least through the 2020 national elections.
The Administration continues its bid to pack the federal courts with as many conservative judges as the Republican Senate is willing to confirm. In addition to sn historically high number of federal district and appellate court vacancies to fill, Trump has been given a second chance to nominate a Supreme Court (SCOTUS) justice. His choice of Judge Brent Kavanaugh to fill the shoes of Justice Kennedy is playing well with most Republicans—whether Trump’s core supporters or establishment Senators. Kavanaugh has been a judge on the Court of Appeals for the District of Columbia Circuit--considered the nation’s second most important court after SCOTUS and the High Court’s AAA farm club.
Kavanaugh is unlikely to be a pro-environment justice, although he believes climate change is real and that Congress should do something about it. As discussed further on, judicial nominations are also a priority of Senate Majority Leader McConnell and are one of the few areas in which he and Trump are in actual lockstep.
The biggest environmental news of the past few months was the resignation of EPA Administrator Pruitt. After the 12th or 13th ethics charge was lodged against him, Senate and House Republicans started to abandon ship. After the 15th or 16th, The Donald seemed to agree and fired him—despite how much he appreciated the man’s zeal to undo Obama’s entire environmental legacy.
The nation remains closely divided in its view of President Trump. Many on the Right tout him a savant—wise in a way no other chief executive has ever been. An anti-establishmentarian for our time, if you will. An almost equal number on the Left question his intellect and wonder how he ever managed to pass civics class, let alone, how he became the 45th President of the United States.
Whatever your view of The Donald, his innate understanding of where loopholes in the governance system reside and how to capitalize them to his advantage should not be under-estimated. His perception and use of a president’s national security powers is unprecedented both in terms of frequency and the variety of applications. They are, as well, only vaguely defined in law and practice.
Trump has invoked them to impose tariffs on foreign aluminum and steel, threaten restrictions on the import of foreign autos and slow immigration. “National security” has been used by his administration, both successfully and unsuccessfully to justify suspension of environmental regulations and maintain uneconomic coal and nuclear-fueled electric generating units.
The reticence of a Republican Congress to check or even challenge his use of national security has in the words of Peter Harrell, an adjunct senior fellow, at the Center for a New American Security:
…upended longstanding international agreements and stretched the definition of “national security”
beyond the intent of Congress in the decades-old statutes that Trump has relied on. Congress needs to
restore its historic role on trade and economic policy and by reforming national security authorities to limit their use to pursue economic policy.
Once more unto the breach, the attorneys representing the youthful plaintiffs in Juliana v US were back before a judge defending their clients’ right to have their day in court. The case was first filed in the U.S. District Court of Oregon in August 2015. Since that time, the plaintiffs have faced what seems like a perpetual series of motions by US Department of Justice attorneys asking that the case be thrown out either on procedural grounds or for lack of legal sufficiency.
The July 18th hearing was on the government’s Motions for a Summary Judgement (MSJ) and A Judgement on the Pleadings (MJP). With one exception—dismissal of President Trump from the lawsuit—the government attorneys appeared to be rearguing issues rejected in March by a 3-judge panel of the Ninth Circuit Court of Appeals.
This most recent hearing was before Federal District Court Judge Ann Aiken. It marked the first time since September 2016 that Judge Aiken heard arguments in open court. Aiken is the trial judge in the case that is set to begin on October 29, 2018.
It is easy enough to appreciate the Administration’s desperately trying to avoid allowing the climate science to be presented at trial. The plaintiffs’ victory in the case would 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. Juliana will be to the environment what Brown v Board was to public education.
Should the plaintiffs prevail, federal support for fossil fuels in its many forms, e.g., tax incentives and access to federal onshore or offshore properties for exploration and extraction, would need to be phased out and replaced by a clean power plan on steroids. No longer a matter of party loyalties an established constitutional right to a sustainable environment would be to partisan politics what Alexander’s blade was to Gordius’ obdurate knot.
For progressives, Democrats, and even some Republicans, the horrors of a Trump presidency are cloaked in judicial robes.
The retirement of Supreme Court Justice Anthony Kennedy may do more to weaken the nation’s environmental protections than the election of Donald J. Trump. A bold statement, I know, but a scenario all too easily imagined particularly when Kennedy’s successor is viewed as only one of the more than one hundred federal judges Trump will appoint during his four years in office. (See Figure)
Kennedy’s retirement guarantees that the most conservative U.S. Supreme Court in nearly a century will become even more so should Judge Kavanaugh be confirmed as Kennedy’s replacement. In number, the split remains the same at five (5) conservatives and four (4) liberals. The numbers, however, do not tell the full story.
Many Republicans still rage over Justice Souter, a man sold to them by the Reagan White House as a true and reliable conservative. A justice, who upon announcing his retirement 19 years later, was vilified for having sided with his colleagues on the court who have preferred a course charted not by the fixed constellation of America’s Constitution, but rather the expansive and swelling currents of progressive political ideals. (emphasis added)
Souter’s votes to uphold Roe v. Wade, forbid public-school-sponsored prayers at graduation ceremonies and declare unconstitutional the public display of the Ten Commandments in two Kentucky counties, branded him as a traitor to the true conservative cause. Souter’s perceived treachery has led to a promise by many in the Republican party never to be fooled again. Whether Kavanaugh can convince groups on the right, like the American Family Association (AFA), that he’s a no-foolin’ conservative remains to be seen. As of the morning after Trump’s announcement, AFA is the only conservative group to acknowledge its opposition to Kavanaugh publicly. Other opponents may be waiting in the wings.
This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. However,…
---Judge Wm. Alsup
Judge Alsup has spoken. Chevron, ExxonMobil and other of the world’s oil companies, large and small, are breathing easier as a result of his dismissal of the City of Oakland and the People of the State of California v BP P.L.C. et al. The suit is one of several recently filed in both federal and state courts by cities, counties, and states alleging they have suffered a redressable harm at the hands of the big oil.
In addition to Oakland and a series of other suits pending in California, New York City has initiated a case against ExxonMobil as has the City of Boulder, Colorado. The plaintiff cities and states are following the same paths taken earlier in tobacco and asbestos suits. Those cases were pursued under state nuisance laws, which are more settled than federal.
Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. In law, a tort is defined as an act or omission giving rise to an injury or harm to another. Specifically, under federal common law, a public nuisance is an unreasonable interference with a right common to the public good.
Although the Oakland case began in the state court, the defendant oil companies prevailed in their motion to have it removed to the federal level. The removal order was the defendant oil companies’ first victory in the case and was issued by Judge Alsup; the same judge who just issued the dismissal order.
The reason Alsup granted the removal order from state to federal court was straightforward. He worried that if a precedent was established to hear these types of cases in state courts, it could lead to [a] patchwork of fifty different answers to the same fundamental global issue [which] would be unworkable…. Given that other local jurisdictions, e.g., New York City, are bringing similar suits against the major oil companies, the patchwork problem is hardly hypothetical.
…there is an easy, capitalist fix: return all the money raised directly to the people, thereby offering all Americans tangible benefits in the here and now.
Tax Be Nimble--
A new group of well-respected business and government leaders formally entered the environmental fray in recent days. Led by the former Republican Senate Majority Leader, Trent Lott (R-MS), and the former Democratic Senate Deputy Majority Whip, John Breaux (D-LA), Americans for Carbon Dividends (AFCD) are advocating the adoption of the Baker-Shultz Carbon Dividends Plan (hereinafter Baker-Shultz).
The organization is new; the proposal is not. The Dividends Plan, named for the former secretaries of state James A. Baker III and George P. Shultz—both with long and distinguished careers in government and solid Republican conservative credentials—was released by the Climate Leadership Council in 2017.
The basics of the plan are this:
Of the two organizations, it appears that AFCD will lead advocacy efforts in the political arena as a tax-exempt 501(c)(4) corporation. The designation allows the group to run paid advertising, lobby policymakers and otherwise undertake media campaigns to build support for the idea. CLC’s 501(c)(3) status constrains its political activities.
I have written regularly over the past 18 months about the rising number of environmental lawsuits being filed each year in US and foreign courts. (see Figure 1) In each of the dozen or more articles, I have consistently stated:
Today, I would like to focus more forcefully on the last of these four bullets—why winning in the court will not win the war on climate change—than I previously have.
I do this not to suggest anyone should refrain from pursuing their government given-right to seek redress for their and Nature’s grievances nor to diminish the importance of doing so. The fact is winning in court is not all it’s cracked up to be given the length of time it takes for a case to be decided and judicial orders to be enforced, the possibility of reversals of lower court decisions by appellate courts, and the political vulnerability of all judicial decisions even those of the US Supreme Court (SCOTUS).
Before getting into the substance of the argument, permit me to declare the only proper conclusion that should be drawn from it--
Judicial decisions that favor climate defenders, in whatever guise, e.g., constitutional protections, compensation under tort laws, or in defense of civil disobedience [i], will fail to keep the rate of global warming within habitable bounds unless and until they lead to an aggressive and stable national integrated energy and environment policy.
Judicial limits are as much practical as theoretical. Consider, for example, who can sue. Although courtroom doors are theoretically open to everyone, once through them, plaintiffs must establish their right to proceed to trial.
Lately, I’ve been wondering if the battles being fought to maintain federal energy and environment policies and programs are clouding the nation’s collective understanding of what the war being waged against the Trump administration is really about?
Before suggesting what it—the metaphorical war of which I write--should be about, let me say it is not about The Donald. At least, it is not only about him, much as he would probably like it to be. Trump is but the current poster boy for climate deniers. Granted he has a lot to do with the current disheveled state of federal climate affairs. The Big D, however, is merely the intellectually slavish embodiment of the nation’s much more significant problem—the lack of an integrated, stable, long-term energy and environment policy.
The problem pre-dates Trump. Although, #President-Lie-Baby can truthfully claim credit for plumbing new depths of the off-again portion of the feast and famine cycle that characterizes federal clean energy and environmental programs and policies. His is not the first administration to dismiss clean energy technologies as fitting subsidiaries of the Rube Goldberg Industrial Empire.
As Trump is not the actual problem, he offers little hope of being the solution. When was the last time Congress—any Congress—enacted or even considered a national energy and environment policy? The answer is not in the lifetime of most anyone who might be reading this article.
Federal decisionmakers have not considered and acted on energy and the environment in the context of an integrated national policy at least since the efforts that led to the creation of the US Department of Energy in 1977. Even then, the consideration of the environment was incidental to the energy portions of the organization effort. The connection, however, was at least made.
As the public debate about the causes and consequences of climate change remains politically charged and as legislative responses elude policymakers, the nation’s courtrooms have become the issue’s principal battleground. Over the past several years I have often written about the politicization of climate policy and the judiciary’s rise as the default driver of the nation’s environmental policy.
Limited by matters of procedure and precedence, courts of law are imperfect venues in which to debate and decide government’s responsibility to protect its citizens and future generations from the ravages of global warming. In this time of hyper-partisanship and government gridlock, the judiciary is the only fully functioning federal branch of government in terms of making reasoned and stable decisions. How long that will last, the given character of Trump’s nominees to the federal bench remains a mystery.
Although hardly responsible for the political divisions that have led to years of legislative and executive gridlock, Donald Trump has deepened the divide and is ushering in an era in which the judiciary has become the target of partisan attacks. The President’s Twitter attacks of judges based on their ethnicity and his visceral dislike of their decisions are encouraging others to assault the legal system and the rule of law.
Today I am writing about an organization—the Government Accountability and Oversight (GAO) group—determined to diminish the public’s confidence in the overwhelming consensus of the science community about the causes and consequences of climate change and the rule of law. According to the organization’s founders:
…today’s environmental movement is increasingly dominated by a determined and well-funded fringe who are pushing their own center to dubious legal propositions. Among these is a campaign that can only be described as a shakedown operation directed against energy companies. (emphasis added)
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.