Courting Disaster

I noted yesterday that blue-state-level action on climate change is only near-term hope for those who don’t want to see the planet cook under a Trump Administration. Unfortunately, some climate activists are embracing false hope from the federal courts–and like those who thought Hillary Clinton would win the Electoral College last Tuesday night, these folks are in for a rude awakening.

Back in September, I wrote about a peculiar lawsuit filed in US District Court in Oregon, a lawsuit that sought to force the Obama administration to essentially shut down domestic sources of carbon pollution. I observed at the time that the lawsuit was doomed, since federal courts would never take the sorts of actions the plaintiffs obviously wanted. The lawsuit will now advance, but it’s a guarantee that it will advance right off a cliff:

A lawsuit filed by young climate activists who contend the U.S. government is failing to protect them from the harmful effects of greenhouse gas emissions can move forward, a federal judge in Oregon ruled Thursday.

U.S. District Judge Ann Aiken in Eugene denied motions by the federal government and trade groups representing big energy companies to dismiss the lawsuit. They had argued that lawmakers and federal agencies, not by the court, should determine climate change policy.

The plaintiffs, including 21 youths and climate scientist James Hansen, allege the federal government has known for decades that carbon pollution causes climate change but has failed to curb greenhouse gas emissions.

They argue that the federal government’s actions violate their constitutional rights to life, liberty, and property, and the government has violated its obligation to hold certain natural resources in trust for future generations.

Julia Olson, lead attorney for the plaintiffs, called the judge’s ruling significant and said the young activists are preparing for trial.
The federal case is among a series of similar lawsuits, including one in Seattle, filed by youth plaintiffs working with Our Children’s Trust, a nonprofit environmental group based in Eugene.

“This case is the most significant in terms of the defendants. It’s the United States, which is most responsible for causing climate change and the country best positioned to lead the world away from fossil fuels,” said Olson, who is the group’s executive director.

If Olson really thinks the United States is “the country best positioned to lead the world away from fossil fuels,” she apparently went to bed too early Tuesday night. Even if the plaintiffs win at trial, does anyone seriously think this lawsuit will make it through the United States Court of Appeals for the Ninth Circuit, which (despite its progressive reputation) ruled against the plaintiffs in the similarly themed Kivalina v. ExxonMobil case in 2012? In his concurring opinion in the Kivalina case, then-Judge Philip Pro (a Reagan-appointed US Distict Court judge sitting “by designation” on the Ninth Circuit at the time) observed:

Kivalina alleges specifically with respect to Appellees that greenhouse gas emissions from Appellees’ operations “no matter where such operations are located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide. The heating that results from the increased carbon dioxide and other greenhouse gas concentrations to which defendants contribute cause specific, identifiable impacts in Kivalina.” Kivalina further alleges that Appellees “knew that their individual greenhouse gas emissions were, in combination with emissions and conduct of others, contributing to global warming and causing injuries to entities such as the Plaintiffs.” Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.

Pro’s reasoning will likely be embraced by the Ninth Circuit. How will the plaintiffs be able to legally prove that specific emissions from specific polluters, and specific inaction by specific agencies of government, will cause specific harm?

Even if the Ninth Circuit upholds a ruling for the plaintiffs in this curious case, does anyone seriously think that a Supreme Court comprised of Clarence Thomas, Samuel Alito, John Roberts, Anthony Kennedy and whichever wingnut President Trump selects to replace Antonin Scalia will issue a ruling ordering the Trump Administration to effectively shut down fossil-fuel development in the United States (which would presumably be the only way to reduce emissions substantially enough to avoid the worst impacts of carbon pollution)?

As I noted back in September, I certainly understand were Olson and the plaintiffs are coming from. People around the world will suffer as a result of the United States’s inaction on climate relative to the magnitude of the threat posed by carbon pollution. However, the grim reality is that the folks who voted for Trump obviously don’t give a damn about those people–and the only hope for federal action on climate lies not in the federal courts, but in the outcome of the 2018 midterm elections and the 2020 Presidential election.

This lawsuit is going to drown, but humanity doesn’t have to.

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.