Supreme Court Can’t Wait to Kill Youth Climate Lawsuit

Like death itself, the end can be delayed, but not escaped:

A group of 21 youths who accuse the U.S. government of failing for decades to properly address climate change defeated the Trump administration’s attempt to keep the dispute out of court.

The U.S. [Ninth] Court of Appeals in San Francisco ruled Wednesday that a novel and sweeping case, which the Obama administration first tried to extinguish in 2016, can proceed toward a trial. Trump’s Justice Department is expected to ask the Supreme Court to shut it down.

The group of mostly teenagers in Oregon alleged in a 2015 complaint that government policies have exacerbated global warming in violation of their rights — and those of future generations — under the U.S. Constitution.

They claim that for more than 50 years, the office of the president and eight federal agencies promoted regulations to support the U.S. energy industry’s proliferation of fossil fuels, accounting for a quarter of the world’s carbon emissions. They asked the court to force the government to formulate a formal plan to change course.

It is as guaranteed as the sun rising in the east that Neil Gorsuch, Clarence Thomas, Anthony Kennedy, John Roberts and Samuel Alito will kill this lawsuit dead. The entire premise of the lawsuit offends their ideology, and the overall ideology of the conservative legal and political movement.

The whole point of the right’s focus on the federal courts over the past several decades is to stop lawsuits such as these from becoming successful. The idea that the federal government would be compelled to effectively put the domestic fossil fuel industry out of business—and make no mistake, a finding that the plaintiffs have a Constitutional right to a stable climate would logically, and inevitably, lead to the court-ordered shutdown of coal, oil and fracked-gas interests doing business in the United States and thus violating that right—is, to conservatives, the epitome of “judicial activism.” They’re going to bury this lawsuit twelve feet under.

This lawsuit has become a cause celebre among climate hawks disappointed by decades of legislative inaction on this issue. They are right to be disappointed. They are wrong to see this lawsuit as a solution.

In fact, in its ruling, the Ninth Circuit seems to suggest that victory for the plaintiffs is ultimately illusory:

The ruling is very good news for climate change advocates, but it certainly doesn’t mean that they won’t be disappointed later in the extraordinary and unprecedented case.

“We are mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress,” wrote the appeals court. “However, the district court needs to consider those issues further in the first instance.”

It’s understandable why the young plaintiffs would pursue a judicial solution to the climate problem: the human rights of our entire civilization are at risk if strong steps are not taken by the most powerful country in the world to curb carbon pollution. However, the odds of federal courts effectively declaring the domestic fossil fuel industry in violation of the Constitution were always slim—and five Republican appointees on the Supreme Court, who never really gave a damn about the rights of future generations, will see to it that those odds are less than zero.

When the Republican majority on the Supreme Court kills this lawsuit, the plaintiffs should rightfully blame Ronald Reagan, George H. W. Bush, George W. Bush and Donald Trump for appointing those five horsemen of climate apocalypse to their undeserved positions on the Court. However, the plaintiffs should also blame those members of the 2016 presidential electorate who couldn’t be bothered to turn out in force for Hillary Clinton, those voters who could not have cared less about who controlled the Supreme Court. A Clinton Supreme Court appointee would have likely recognized the merits of the plaintiffs’ claims. Gorsuch won’t, because he ideologically cannot.

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.