Laws of Physics

In a textbook example of actions borne of frustration leading to potentially negative consequences, climate activists in Washington state have, in effect, won and lost a case attempting to compel the state to take aggressive action to reduce carbon pollution. The odd outcome of this case merely reaffirms the importance of a federal legislative solution to address climate change:

A judge has denied an appeal by eight young activists who petitioned Washington state to adopt stricter science-based regulations to protect them against climate change.

King County Superior Court Judge Hollis Hill affirmed some of the children’s arguments, saying the state has a duty to protect natural resources for future generations. But she said the Washington Department of Ecology is already working on meeting that obligation by writing new rules for greenhouse gas emissions ordered by the governor.

Climate activists, ages 10 to 15, in Seattle brought the lawsuit asking the court to force state officials to adopt new rules to limit carbon emissions based on the best available science. The case is part of a nationwide effort led by the Oregon-based nonprofit Our Children’s Trust to force states and the federal government to take action on climate change.

The judge noted in her ruling Thursday that the Ecology Department is taking science into account, along with economic, social and political considerations. She also said the court can’t dictate how officials develop the rules.

Lawyers representing the children claimed a win Friday, saying youth who sued got what they wanted even though the judge did not order the agency to write new rules.

I completely understand the motivation behind the years-long effort to sue state governments, as well as the federal government, for failing to act as forcefully as possible to slash carbon emissions. With 2015 threatening to eclipse 2014 as the hottest year on record, it’s clear that much more has to be done, particularly by the richest and most powerful nation in this warming world, to tamp down temperatures. However, going the legal route invites all sorts of potential mischief.

Imagine if a few of these state-level cases end up in the hands of right-wing judges. What’s to stop those judges from declaring that their respective states do indeed have a legal obligation to reduce carbon emissions–and then order their states to fulfill this obligation by building (or keeping open) potentially hazardous nuclear power plants, pointing to the fact that legendary climate scientist James Hansen–a vocal supporter of these lawsuits–has defended nuclear power as the sine qua non of addressing human-caused climate change? What’s to stop these robed reactionaries from ordering their states to increase their use of fracked natural gas to fulfill this obligation, on the grounds that fracked gas has a lower carbon footprint than coal–despite the abundant evidence that methane emissions from fracked gas make that particular energy source a climate destroyer disguised as savior?

Climate lawsuits aimed at the federal government are problematic for another reason, one outlined by US District Court Judge Robert L. Wilkins (a Barack Obama appointee) in Alec L. et. al. v. Lisa Jackson et. al. (2012):

First, in order to find that there is a violation of the public trust—at least as the Plaintiffs have pled it—the Court must make an initial determination that current levels of carbon dioxide are too high and, therefore, the federal defendants have violated their fiduciary duties under the public trust. Then, the Court must make specific determinations as to the appropriate level of atmospheric carbon dioxide, as determine whether the climate recovery plan sought as relief will effectively attain that goal. Finally, the Court must not only retain jurisdiction of the matter, but also review and approve the Defendants’ proposals for reducing greenhouse gas emissions. Ultimately, Plaintiffs are effectively seeking to have the Court mandate that federal agencies undertake specific regulatory activity, even if such regulatory activity is not required by any statute enacted by Congress.

These are determinations that are best left to the federal agencies that are better equipped, and that have a Congressional mandate, to serve as the “primary regulator of greenhouse gas emissions.” The emissions of greenhouse gases, and specifically carbon dioxide, are subject to regulation under the Clean Air Act. Massachusetts v. E.P.A., 549 U.S. 497, 528-29 (2007). Thus, a federal common law claim directed to the reduction or regulation of carbon dioxide emissions is displaced by the Act… Therefore, even if Plaintiffs allege a public trust claim that could be construed as sounding in federal common law, the Court finds that that cause of action is displaced by the Clean Air Act…

Ultimately, this case is about the fundamental nature of our government and our constitutional system, just as much – if not more so – than it is about emissions, the atmosphere or the climate. Throughout history, the federal courts have served a role both essential and consequential in our form of government by resolving disputes that individual citizens and their elected representatives could not resolve without intervention. And in doing so, federal courts have occasionally been called upon to craft remedies that were seen by some as drastic to redress those seemingly insoluble disputes. But that reality does not mean that every dispute is one for the federal courts to resolve, nor does it mean that a sweeping court-imposed remedy is the appropriate medicine for every intractable problem.

Ultimately, American leadership has to take the form of strong federal legislation to reduce carbon pollution–and there are plenty of economists and activists who note that the possibility of such legislation passing isn’t that remote, Congressional partisanship on climate notwithstanding. These attempts to reduce emissions through litigation are well-intentioned but profoundly problematic: after all, do you really want Antonin Scalia deciding what the proper level of CO2 in the atmosphere should be?

UPDATE: More from Think Progress, Grist and Seattle Weekly.

SECOND UPDATE: More from the Raleigh News and Observer.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.