Defending the atmosphere, part 2

“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.”

This is part two in our series from guest blogger Bill Becker, Executive Director, the Presidential Climate Action Project.  Part one is here.

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

10 Responses to Defending the atmosphere, part 2

  1. Richard L says:

    Climate activists target states with lawsuits
    By MATTHEW BROWN, Associated Press Posted Wed May 4, 2011 8:43pm PDT

    BILLINGS, Mont. – A group of attorneys representing children and young adults began to file legal actions Wednesday in every state and the District of Columbia in an effort to force government intervention on climate change.

    The courtroom ploy was backed by activists looking for a legal soft spot to advance a cause that has stumbled in the face of stiff congressional opposition and a skeptical U.S. Supreme Court.

    The goal is to have the atmosphere declared for the first time as a “public trust” deserving special protection. That’s a concept previously used to clean up polluted rivers and coastlines, although legal experts said they were uncertain it could be applied successfully to climate change.

    The spate of lawsuits, led by an Oregon-based nonprofit called Our Children’s Trust, were based on “common law” theories, not statutes adopted by state or federal lawmakers. Documents in the cases were provided in advance to The Associated Press.

    State-level lawsuits were filed in California, Colorado, Minnesota, Montana, New Mexico, Oregon and Washington, and a federal lawsuit was filed in California, said Julia Olson with Our Children’s Trust.

    Suits were planned in Alaska, Arizona, Massachusetts and New Jersey. In all other states, regulatory petitions were filed or pending to ask state environmental agencies to tighten restrictions on vehicle and industrial plant emissions, Olson said.

    Conservative opponents warned the effort could overload the judicial system and paralyze the economy with over-regulation.

    Attorneys involved in the lawsuits said a victory in even one or two cases would give environmentalists leverage, leading to new regulations to rein in greenhouse gas emissions that scientists say are driving global temperatures higher

  2. i think so climate protection is a fiduciary obligation, not a political question.

  3. mattlant says:

    If the land we live on is poisoned, we die.
    If the river we drink water from is poinsoned, we die.
    And like so, if the air we breath is poisoned, we die.
    Our atmosphere absolutely is a natural resource that needs to be protected, and our leaders are obligated to protect.

  4. Mike Roddy says:

    These state based climate change lawsuits are noble, and badly needed. The endgame, unfortunately, is likely to be a failure to review by the Supreme Court, which is almost as beholden to the fossil fuel companies as Congress.

    This will lead to an interesting situation. Activists and scientists will be outraged at the Supreme Court’s decision, which is likely to be phrased in subtle and deceptive legalese.

    At that point, the play might be to use this event in order to gather our forces and shout out about the awful corruption that has overtaken our country, and not just from fossil fuels. Timber and banking enjoy similar privileges. The mainstream media will not cover this adequately, and will feature “balancing” quotes from apologists like Inhofe and Barasso. This should in turn lead to an organized rejection of what passes for our public discourse, spearheaded by defections from key reporters and leveraged by new media outlets. Publications that pretend to be objective should be not just bypassed, but boycotted.

    This should not be used as a way to enable full takeover by the Democrats, who also have dirty hands. Corruption and ignorance do not have party affiliations.

    It’s also a rare opportunity for the people of a once great country to gather in order to fight what have become unfathomably evil and dangerous forces, as in the struggle during World War II. We have our own fascists now.

    Dreaming? Maybe. How do you like the dream of business as usual, though?

  5. Leif says:

    Good one Mike. I do not believe that the problem has ever been a question of right and wrong in this campaign, the fact have always been clear to those that look. The problem has always been the ability of the “facts” to to reach the public at large. The ability to break thru the smoke screen instantly belched by the right to confuse and obscure any meaningful discussion. Again, I must lay a large part of the blame at the feet of the press. Their roll in this atrocity is nothing short of criminal IMO.

    “Climate sanity is inherited from your children.” Good one as well Merrelyn Emery.

    Joe and Climate Progress, a light in the woods.

    Commentators all, you keep me in the fight.

    Two Palms Up,


  6. Leland Palmer says:

    Every ton of fossil fuel burned will burden the earth system with greenhouse heating equivalent to the heat of combustion of 100,000 tons of fossil fuel, according to Ken Caldeira of Stanford University.

    If that’s not a public nuisance, I don’t know what would be. Look up “public nuisance”, and the definition should mention this as an example- the side effects are tens or hundreds of thousands of times greater than the useful heat of combustion.

    A moment’s reflection will tell any of us that this almost unbelievable statistic is perfectly plausible, given that we accept the basic physics of the greenhouse effect. Solar heating is orders of magnitude greater than anything our puny technology is able to provide.

    If the methane hydrates destabilize, we could end up burdening ourselves and future generations, if any, with greenhouse heating millions of times the useful heat of combustion, for each ton of fossil fuel.

    Suppose I was a cut rate arsonist, burning down million dollar houses for a dollar each. Wouldn’t I be considered a public nuisance, or more properly a public menace?

    This recent Supreme Court decision in Connecticut vs. American Electric Power will go down in the history of the U.S. as the most shameful and stupid Supreme Court decision of all time.

  7. Bill W says:

    Compulsive proofreader chiming in. In the sentence, “In reality, unmitigated climate is what will cause incalculable damages to American lives, property and the economy, leading to massive increases in federal spending.”, shouldn’t that be “unmitigated climate change”?

    This is a wonderful effort, and I hope it goes far. I fear climate action will ultimately require the actions described by Mike Roddy in post #5. It’s going to take something like a revolution.

  8. Peter Sergienko says:

    As a graduate of the University of Oregon School of Law and a United States citizen who cares deeply about these issues, I applaud the effort and creativity of the lawyers and law students crafting these lawsuits.

    These cases may not succeed on the merits, but this isn’t the only way to win here. This litigation will achieve some very useful objectives even if the relief sought is ultimately denied.

    Substantively, the legislative branch could limit greenhouse gas emissions through legislation, but has utterly failed to do so for all the reasons noted in this article and more. The executive branch has taken initial steps to limit greenhouse gas emissions through regulations. While the regulatory effort is under siege and almost certainly inadequate, again as discussed here and elsewhere, the judiciary is unlikely to grab power from the other branches of government and mandate reductions in greenhouse gas emissions, especially given the current makeup of the Supreme Court. This result likely holds even if the legislative and regulatory efforts can be proven inadequate. If the lawsuits fail, they’ll at least highlight the failures of the current system, hopefully resulting in needed political changes.

    I’ve been frustrated by this for more years than I can remember, but the future of humanity seems to rest largely in the hands of 10 – 20 senators representing relatively few people and easily influenced by the fossil fuel industry to maintain the status quo. It’s Orwellian that this is happening in, supposedly, the greatest democracy (republic) the world has ever seen.

    Given the stakes, the briefing in these cases should ask the judiciary the ultimate question posed by Jared Diamond in Collapse: will we, as failed societies in the past have done, maintain our cultural norms (here, deference to the political question doctrine and to undemocratic senate rules)and refuse to change even though we know that such failure could well lead to societal collapse? So far, the answer has been a resounding, “yes!”.

    These lawsuits, whether or not they ultimately succeed on the merits, are an important tool in changing the answer from “yes” to “no.”

    As an overarching way of looking at change, it would be useful to identify and pursue a set of “wedges” for the cultural changes needed in the United States to address greenhouse gas emissions and other limits to growth. Other countries or regions could do the same. As with the technical changes, everyone in the world is a stakeholder because we all share the same atmosphere. Engaging with the cultural changes needed might be a good way to drive that point home.

    Anyway, changes in legal systems are certainly a wedge in the cultural sphere. Such change is clearly under way. Boliva, for example, is set to pass laws granting all nature equal rights to humans. Thus, moving novel or perhaps “minority view” legal theories such as the public trust doctrine and intergenerational justice into the mainstream is an important part of that wedge. Again, these lawsuits and the creativty and progressive legal theories underlying them are very welcome additions to the climate hawk tool kit.

  9. Bill Becker says:

    7. Bill W: Good catch. Thanks.

  10. Buzz Belleville says:

    If only we had listened to Justice Douglas four decades ago, and allowed the atmosphere to sue on its own behalf … Who will speak for the climate?

    “The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded …
    “Inanimate objects are sometimes parties in litigation…. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”