“The judicial role is to compel the political branches to meet their fiduciary obligation through whatever measures and policies they choose, as long as such measures sufficiently reduce carbon emissions within the required time frame. The courts’ role is not to supplant a judge’s wisdom for a legislature’s approach, but rather to police the other branches to ensure fulfillment of their trust responsibility in accordance with the climate imperatives of nature.”
In response to a lawsuit that argues greenhouse gas emissions are a “public nuisance”, three of Congress’s most active opponents of responsible climate policy filed a brief with the U.S. Supreme Court last February. Rep. Fred Upton, Rep. Ed Whitfield and Sen. James Inhofe told the Justices it is inappropriate and unnecessary for courts to get involved in America’s climate policy.
Upton chairs the House Committee on Energy and Commerce; Whitfield chairs the House Subcommittee on Energy and Power; and Inhofe is the ranking member of the Senate Committee on Environment and Public Works. All three are prominent Republican opponents of climate action, working among other things to scuttle EPA’s authority to regulate greenhouse gas emissions.
To be fair, it’s not just Republicans who are blocking Congress from acting against climate change. Nineteen Democrats in the House voted for Inhofe’s and Upton’s bill to strip EPA of its regulatory authority. Several Senate Democrats also voted for the bill, including Sen. Joe Manchin of West Virginia, who complains “EPA’s overreach is destroying jobs in my state and all over the country”. (For an excellent report on Congress’s effort to “repeal climate science”, see Remapping Debate.)
If the courts agree to consider the “iMatter” movement’s atmospheric trust lawsuits (see Part 1 of this post), here are some of the arguments we can expect from opponents of climate action, whose delicate phrasing makes inaction sound like action. The italicized portions are direct quotes from the brief that Upton, Whitfield and Inhofe filed in the public nuisance lawsuit, American Power v. Connecticut:
Argument: The courts don’t have to act because members of Congress have been actively involved in the legislative process relating to climate change policies and regulations.
Reality Check: By “actively involved in the legislative process”, the three Republicans mean opponents are using the process to block meaningful action on climate change. So far, they’ve been successful.
Argument: Members of Congress have strong institutional and policy interests in preserving Congress’ plenary role in determining climate change policy for the nation.
Reality Check: In other words, members of Congress want to maintain control of climate policy so they can protect the interests of the coal, oil and nuclear industries, which contribute handsomely to reelection campaigns.
Argument: Plaintiffs are asking the Court to become involved in political and public policy matters that are being resolved by the Legislative and Executive branches of government.
Reality Check: Climate policy is not “being resolved”, unless “being resolved” means making sure there is no national climate policy at all. While the evidence and impacts of climate change are increasing in the United States and worldwide, there is no prospect that Congress will pass a bill limiting greenhouse gas emissions anytime soon. As for action by the Executive Branch, the three Republicans and their colleagues are trying to block it. At the same time they argue climate policy is being resolved, their brief complains the Obama Administration has “unleashed a torrent of greenhouse gas regulations” and has “engaged in frenetic regulatory activity”.
Argument: The courts needn’t worry because the United States is engaged in two decades of Congressionally authorized international climate change policy negotiations.
Reality Check: Due in large part to opposition in Congress and the last Bush Administration, two decades of international negotiations have not produced an effective treaty to combat climate change. It was opposition in the U.S. Senate that prevented the United States from becoming party to the Kyoto Protocol, in which other nations committed to reducing their carbon emissions. The United States has not yet fulfilled its obligations under the one climate treaty the Senate did support – the United Nations Framework Convention on Climate Change signed by President George H.W. Bush 14 years ago.
Argument: The climate actions the Obama Administration has taken over the last two years may well exceed the authorities Congress has vested in the Executive, and are at a minimum extremely misguided.
Reality Check: The actions the Obama Administration has taken so far to cut America’s greenhouse gas emissions are based on sound science and are designed to protect the security of the American people. What’s more, the Administration has been carrying out the environmental protection laws instituted by past presidents and congresses. That’s hardly “misguided”. On the other hand, Congress’s willful denial of the substantial observational and scientific evidence of global climate change is an abdication of the government’s responsibility to protect the health and welfare of the American people.
Argument: Extensive Congressional hearings have examined the broad range of economic issues associated with proposed “solutions”, including their impact on energy prices, markets household incomes and American competitiveness”¦
Reality Check: Examining issues is not the same as resolving them. Hearings in the current Congress have been used to mock climate science and to raise fears a clean energy economy would hurt families, workers and the economy. In reality, unmitigated climate is what will cause incalculable damages to American lives, property and the economy, leading to massive increases in federal spending. Clear and consistent policies to create a clean energy economy, on the other hand, would have positive economic impacts, including a boost to American competitiveness in the growing international market for low-carbon energy technologies. According to Pew Charitable Trusts, worldwide investments and financing in the clean energy sector have grown 630 percent since 2004, but the “U.S. competitive position in the clean energy sector is deteriorating.” The United States has slipped from the world leader in clean energy investments in 2008 to third place today.
Argument: The Legislative and Executive Branches are doing their jobs in a way that the Constitution envisions.
Reality Check: In the Senate, climate-related legislation has been blocked by a rule that requires 60 votes just to debate, let alone pass, a bill. The Constitution envisioned that a simple majority would be sufficient to pass the nation’s laws.
Argument: Climate change involves extremely complex, highly charged policy questions that are purely political in nature.
Reality Check: Responsible climate policy is not “purely political”, although opponents have tried to make it so. Climate policy is question of risk: If it’s possible that the majority of the world’s climate scientists are correct in concluding that unmitigated climate change will be catastrophic, how much of that risk will Congress force upon the American people, present and future? And as the iMatter lawsuits will assert, climate protection is a fiduciary obligation, not a political question.
We don’t know what the courts will rule on these questions, but we do know that any judge who reads the newspapers can see through the claim that Congress is handling the climate issue. If I were arguing these cases, I’d contend that the balance of power the Founders intended between the three branches of the U.S. government should be used to protect the American people from abuses of omission as well as commission.
Prof. Wood makes the case more eloquently:
The judicial role is to compel the political branches to meet their fiduciary obligation through whatever measures and policies they choose, as long as such measures sufficiently reduce carbon emissions within the required time frame. The courts’ role is not to supplant a judge’s wisdom for a legislature’s approach, but rather to police the other branches to ensure fulfillment of their trust responsibility in accordance with the climate imperatives of nature.
– Bill Becker