In part one of this article, I took a closer look at the oral arguments in the latest episode of Juliana v. United States, and identified two questions that were raised during the orals that bear further consideration:
The first was: who would prevail in the event of a conflict between the findings of the District Court and the Trump administration?
What if: The District Court finds climate change harmful to the health of the plaintiffs and a violation of their constitutional rights. BUT, the Administration finds climate change a hoax or of a much-diminished magnitude than currently thought after its current reconsideration of the Clean Power Plan (CPP)?
Although a hypothetical, the question reflects recent actions by the Trump administration to review, with an eye towards revising or repealing, the now stayed CPP issued by the Obama administration. The query also gives the nod to the genuine possibility the endangerment finding upon which the CPP is based will be rescinded or substantially revised downward.
The attitude of the President and the EPA Administrator is well known. Revision, if not rescission, of the CPP, is a near certainty. It is at least an even bet Administrator Pruitt will prevail upon Trump to approve rescission or a substantial watering of the endangerment finding as well. One can be sure that the decision(s) will be based on the findings of the relatively few credentialed scientists at odds with the 97 percent of their colleagues who believe otherwise.
The hypothetical was directed to plaintiff’s attorney, Julia Olson. The asking judge was hoping for a succinct yes or no answer.
Some questions do not lend themselves to such simplicity, while others demand a diplomatic workaround. Handicapping judicial decisions is a losing proposition, as is sometimes trying to guess what is going through a judge’s mind.
Had the question been whom would you like to prevai,l the answer would be easy for any climate defender to answer. As it is, it will depend upon the composition of the Supreme Court of the United States (SCOTUS) at the time the question is finally popped. Whatever the Administration’s decision in the case of the CPP, it will be challenged all the way to SCOTUS—without question.
If the Juliana case proceeds to trial, the scenario outlined by the judge is entirely possible. Existing precedents support EPA’s authority to regulate GHG emissions (see Massachusetts v EPA) and the preponderance of scientific evidence—a standard accepted by federal courts—supports the endangerment finding.
There are, of course, variations on these themes. In the main, however, the Obama administration was on solid ground in its issuance of both the endangerment finding and the CPP. Solid though it is, it is neither legally nor Constitutionally hallowed ground.
The decision in the Massachusetts case, for example, was the proverbial squeaker—five votes in favor of EPA authority to regulate carbon emissions and four against. The negative votes were cast by the more conservative justices in the group, i.e., those appointed by Republican presidents. The positive opinions were uttered by Democratic appointees. The current balance of SCOTUS reflects the same split as at the time of the Massachusetts decision.
It is possible Trump will have the opportunity to appoint at least one more justice of the Supreme Court before the end of his first term. Several current justices, i.e., Kennedy and Ginsburg, are of an age to consider retirement.
A second Trump appointee will undoubtedly be more closely aligned with conservative Constitutional thinking than liberal—thinking more in keeping with limited federal authority yet more willing to accept an EPA determination that the science of climate change is not as solid as thought by most in the scientific community. Trump is already having an impact through his continuing nomination of federal district and appellate court judges.
Anticipating who prevails in the scenario suggested at the hearing is unlikely to be dispositive of the Juliana case. It is, however, something to think about.
The second question of concern may not appear negative on its face but suggests Juliana could fall short of the claim environmental trial of the century.
The youths contend in their pleadings to the District Court the government’s actions in support of fossil fuels, e.g., allowing exploration and extraction on federal lands, and inactions, e.g., inadequately regulating GHG emissions, are:
…damaging human and natural systems, increasing the risk of loss of life and requiring adaptation on larger and faster scales than current species have successfully achieved in the past, potentially increasing the risk of extinction or severe disruption for many species.
…allowing atmospheric concentrations of six well-mixed GHGs, including C02, to threaten the public health and welfare of current and future generations, and this threat will mount over time as GHGs continue to accumulate in the atmosphere and result in ever greater rates of climate change.
…increasing in [sic] allergies, asthma, cancer, cardiovascular disease, stroke, heat-related morbidity and mortality, food-borne diseases, injuries, toxic exposures, mental health and stress disorders, and neurological diseases and disorders.
The Administration responded in part to plaintiff allegations:
This is purely political — a liberal judge putting his personal opinions on climate change above the law…this case “should have been thrown out of court…burning fossil fuels do not violate any portion of the Constitution or the bill of rights…Rather, burning oil and gas contributes greatly to life, the pursuit of happiness, and the general welfare. (emphasis added)
Judge Aiken had asked for the assistance of Magistrate Judge (Coffin) in reviewing the issues involved in the case and making recommendations on how she might proceed. Judge Coffin disagreed with the government’s position and thought there was no better-qualified forum for reasoned debate on the scientific basis of the allegations and the answers. He wrote:
Whether…climate change is occurring, whether …human induced, and the degree of its severity and impact on the global climate, natural environment, human health is quintessentially a subject of scientific study and methodology, not solely political debate. (emphasis added)
Since the earlier filings, things have changed a bit. The Trump administration has agreed to many of the factual claims made by the youths and has chosen—at least for the moment—to focus on the legal merits, e.g., standing and constitutional rights. As previously mentioned a number of the intervenors who were willing to take on the scientific debate have since taken themselves off the case.
To the less suspicious of us, the government’s having demurred to the science would seem a good thing. I, however, am a “suspicionist” (as well as a maker-upper of words).
Juliana’s reputation as the environmental version of the Scopes Monkey Trial rests—in my opinion—on at least two pillars:
1. Humans and the nation’s natural resources have the Constitutional right to be protected from the ravages of climate change; and,
2. The science of climate change can be debated and decided by a court of law.
The question asked of Lawyer Olson that threatens to knock out one of those pillars is: if the government has agreed with the scientific allegations laid out in plaintiffs’ pleadings, does the trial court even have to hear about the science?
It does, your Honor, it does!
The reason it does is because of the politicizing of climate change/global warming. There is no other neutral forum in which to conduct the debate—certainly not in Congress nor on the newly constituted science advisory boards of EPA after Administrator Pruitt fired most of the mainstream advisors and started packing the committees with certified denier appointees. Neither is there a rigged-free venue to be found anywhere in an Administration whose only requirement for its agency leaders is a recorded unwillingness to accept even the possibility that most of the world’s scientists might be on to something when they identify carbon emissions and the things we do as harmful to ourselves and the planet. Nor is Twitter the place for such a debate now that it allows 280 characters.
Partisan politics leaves only the courts as a place to have a debate with any possibility of leading to sustainable government action. The past quarter-century or more has witnessed the winding and unwinding of federal climate policies and protections.
These partisan swings sap the positive energies of one administration by another and condemn the nation to a Sisyphean-cycle. Must the nation perpetually move closer to achieving the goal of sustainability, only to be blown back every four or eight years—buffeted by political winds?
Time and Nature wait for no one. Failing to contain global warming threatens the health and well-being of current generations. Most importantly, it steals the opportunities of future generations to live long and prosper. These are the Juliana’s plaintiffs.
The raw hostility to climate science and the depth of enmity exhibited by Trump and company is not to be seen merely in their efforts to unwind the environmental legacies of Nixon, Carter, G.H.W. Bush, Clinton, and Obama. It is found in their purging them from consciousness—to deny their reason for being and very existence.
The darkest irony of all is the one time the Administration seems content to agree that climate change is bad for America and is the product of harmful human emissions is the time when their outright dismissal of scientific fact might defeat an open and consequential debate. A meaningful proceeding in the only remaining forum able to prompt constructive action.
Judge Coffin is right: the judicial forum is particularly well-suited for the resolution of factual and expert scientific disputes, providing an opportunity for all parties to present evidence, under oath and subject to cross-examination in a process that is public, open, and on the record.
Denial not debate is the watchword of this President and his agents. To date, the legal victories of climate defenders have been mostly the consequence of an administration indifferent to the established rule of law.
What distinguishes Juliana v. U.S. from all the cases that have gone before is the opportunity it offers to elevate environmental protection to a Constitutional right—equal to the right to vote or to love and to marry whomever one chooses. The inalienable right to the pursuit of happiness and opportunities to thrive and to prosper. A right not easily abridged or made a victim of political whims.
Let’s hope the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejects the DOJ’s request to halt the debate before it begins.
This article was originally published on CivilNotion.com and was republished with permission.
Lead image credit: CC0 Creative Commons | Pixabay