Climate Court

Judges play a crucial role in protecting our rights as citizens.  That’s their job and often when deciding cases, judges must strike a balance between competing interests of different citizens and groups using our constitution as the roadmap.  Choosing judges that will fairly execute these responsibilities is therefore extremely important because otherwise, justice will not be served and our form of government will lose support of the people.  These are some of the reasons why there is so much interest in selecting the next Supreme Court Justice.

It’s unfortunate that our political leaders have degenerated into tribal behaviors at the expense of the well-being of the entire country.  But that is where we find ourselves:  Red vs. blue; white vs. black; rural vs. urban; old vs. young; wealthy vs. poor; conservatives vs. progressives; Fox vs. MSNBC; unmasked vs. masked. 

Too often the process of selecting and approving the appointment of a judge for a particular position is to advance the agenda of the party in power.  That’s what has likely occurred in the current nomination of Amy Coney Barrett, the judge nominated by President Trump to replace the deceased Ruth Bader Ginsberg on the Supreme Court.  That’s unfortunate.  But whichever side is “in power” gets to choose “one of theirs” to fill any openings.  Principles or traditions may be dismissed if that’s what it takes to win. 

Relative to climate change, our courts have been busy addressing the competing interests of those advocating protecting our planet, as compared to those advocating their economic interests.  This is not a new phenomenon.  When the Environmental Protection Agency was created in 1970, the federal government began implementing sweeping regulations to address air quality, water quality, pollution, and other impurities (e.g., pesticides) that were increasingly impacting our quality of life.  Wikipedia has an extensive history of the agency and summarizes the controversy created by the EPA this way: “Many public health and environmental groups advocate for the agency and believe that it is creating a better world. Other critics believe that the agency commits government overreach by adding unnecessary regulations on business and property owners.”  Therein lies the reason the EPA is routinely in court; hence, the critical role our judges play in the future of our planet.

In addition to affected businesses challenging the EPA’s rules and regulations, the Trump administration has initiated the most aggressive environmental deregulation agenda in modern history.  Under Trump’s direction, the EPA has repealed and replaced the Obama-era emissions rules for power plants and vehicles; weakened protections for more than half the nation’s wetlands; and withdrew the legal justification for restricting mercury emissions from power plants.  Under Trump’s administration, the EPA’s 180 degree shift in positions has been so remarkable that recently the EPA rejected its own findings showing scientific evidence linking the pesticide chlorpyrifos to serious health problems. This directly contradicts EPA scientists’ conclusions five years ago that chlorpyrifos can stunt brain development in children! The re-assessment of this pesticide, which is widely used on soybeans, almonds, grapes and other crops, is a fresh victory for chemical-makers and the agricultural industry.

Similarly, the Administration’s Interior Department has worked to open up more land for oil and gas leasing by cutting back protected areas and limiting wildlife protections.  The New York Times published a list of 100 rollbacks as of May, 2020 explaining the actions and their status (as of May 2020).

But not all of Trump’s regulatory rollbacks have been successful.  Environmental groups and states have taken these initiatives to court and have been able to block or temporarily postpone, through injunctions, many of the Trump administration’s rollbacks.  In fact, the Trump administration has won only 16% of its court cases.  The EPA has won only 9 of 47 and the Interior Department has won only 4 of 22 cases.  But the courts have given the Administration the opportunity to revise their filings, many of which were denied due to a lack of justification or scientific accountability. 

These “second opportunities” to advance deregulation and rollbacks are what concern environmentalists and others trying to protect the planet.  If Biden were to become President, his administration could withdraw the pending cases. But if Trump were to secure a second term, the attempts to rollback regulations will continue.  And some believe the appointment of a 6^th conservative judge on the Supreme Court, Amy Coney Barrett, would offer little resistance to those environmental cases that ultimately might be reviewed by that court.

In April, 2019, in my post Our Children Are Our Future, I presented another interesting environmental case that is making its way through the court system.   The lawsuit, Juliana, et al. v. United States of America, et al. was filed in 2015 by 21 youth plaintiffs against the United States and several executive branches.  The lawsuit asserts that the United States government violated the plaintiffs’ rights by encouraging and allowing activities relating to greenhouse gas emissions that significantly infringed upon their right to life and liberty.  This case gained attention in 2016 when U.S. District Court of Oregon Judge Ann Aiken declined to dismiss it.  Judge Aiken ruled that access to a clean environment was a fundamental right. In January 2020, a Ninth Circuit panel reversed Judge Aiken and dismissed the case on the grounds that the plaintiffs lacked standing to sue. Attorneys for the youth plaintiffs have appealed the dismissal.  While not yet resolved, cases like this may ultimately be addressed by the Supreme Court.

Just last week, the Supreme Court agreed to hear another climate change case in the Court’s next session. This case, BP P.L.C. v. Mayor and City Council of Baltimore is one of many filed by cities and states that seek compensation from oil and energy companies for the harm caused by the energy companies conduct. In Baltimore’s suit, the city states the companies’ “production, promotion and marketing of fossil fuel products, simultaneous concealment of the known hazards of those products and their championing of antiscience campaigns” harmed the city”. The energy companies want these cases to be heard in federal court rather than state court, where the believe the local governments will enjoy a “home court advantage”.

If someone was attempting to burn down my house, and I filed a lawsuit against them to force them to stop, I would want the judge hearing my case to be fair and just.  No one should be allowed to burn down the house of others.  But that’s what’s happening relative to climate change – our home, earth, is being threatened and is burning up, due to leaders choosing to not take action to stop it.  Let’s hope those judges, who address the question of whether or not it is a fundamental right to expect the government to take steps to protect the planet, will be just and fair and allow all of us to enjoy our Constitutional rights of life and liberty on a healthy planet. 

A footnote to last week’s post (Vote to Save Our Planet): In a surprise move, Chris Wallace, the moderator in the first Presidential debate, brought up the question of climate change near the end of the program.  Climate change and the environment were not on the list of scheduled topics in this debate.  Usually climate change is not considered a “first tier” issue among voters (although in my opinion it should be).  While there was little substantive discussion this time, I now expect the issue will reappear more prominently in future debates and hopefully, in the public discourse.