Juliana v. United States — the Court speaks, reveals it’s part chicken

Photo of 21 young people suing the U.S. government — Juliana v. U.S. climate case. Image: Our Children’s Trust
The 21 young people suing the U.S. government in Juliana v. U.S. climate case.

Juliana v. Unites States, the climate case launched in 2015 by 21 young people ranging in age from 8 to 19 at the time, was dismissed by a federal appeals court last month. Our Children’s Trust, the nonprofit organization backing the lawsuit, plans to appeal the ruling.

The young people claim that the federal government has violated their constitutional rights, including a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” (The Due Process Clause bars the federal government from depriving a person of “life, liberty, or property” without “due process of law.”). The youths want the court to order the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”

The latest episode in this legal saga began on Sep. 20, 2018 when the federal district court in Oregon issued an order for the case to go to trial. On Dec. 26, 2018 the Ninth Circuit Court of Appeals granted the federal government’s petition (its fifth since the suit was first filed in 2015) to appeal the case on the grounds that the youths lack standing. On Jan. 17, 2020, a panel of three judges ruled two-to-one in agreement with the government, and sent the case back to the district court with orders to dismiss.

The appeals court’s majority opinion says: “the record leaves little basis for denying that climate change is occurring at an increasingly rapid pace”; that the rise in atmospheric CO2 “stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked”; that “Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.”

Yet, despite agreeing with the young people about the pressing need for government action, and despite Judge Josephine Staton’s vigorous dissent, Judges Andrew Hurwitz and Mary Murguia opted to toss the case. How to explain? A careful reading of the majority opinion (Judge Hurwitz writing) may enlighten:

To have standing in a federal district court, a claimant must have “(1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision.” All three judges on the panel agree that the young people (1) have been injured and that (2) the challenged conduct of the government caused the injuries. The panel, however, split on (3) the redressable question, with Hurwitz and Murguia arguing that the young people’s injuries are not redressable by a federal district court.

To establish redressability “the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award.” Regarding (1), Hurwitz expresses scepticism but does not deny that phasing out fossil fuels would likely provide the plaintiffs with a measure of relief. Regarding (2), Hurwitz states bluntly that “it is beyond the power of a [federal district] court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.

Hold on! Something is wrong here. The plaintiffs do not ask the court to design, supervise, or implement a plan, they ask only that the court order the government to develop a plan. To conform with that fact, Hurwitz’s blunt statement could be rephrased as follows: ‘iis beyond the power of a federal district court to order the plaintiffs’ requested remedial plan.’ But is it? Is it beyond the power of a federal district court to order the federal government to develop a plan to phase out fossil fuel emissions? Of course not. Such an order might not be politic. It might step on toes. But it sure as hell is not beyond a district court’s power to so order.

Photo of judges hammer and ‘court order’ sign
Image credit: San Diego Co. Bar Assoc.

Hurwitz does not dwell on the question of a district court’s power to order the government to develop a plan. Instead he reaches for reasons to explain why the court should not issue such an order. He tries—we’re entering brain cramp territory here— to convince the reader that if a district court ordered the government to develop a plan, the court would also have to design, supervise, and implement it. Here are some of his statements:

♦ “any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
♦  any remedial plan “would subsequently require the judiciary to pass judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policy making.” (my underline. More about that below)
♦ “we cannot substitute our own assessment for the Executive’s [or Legislature’s] predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’”
♦ “given the complexity and long-lasting nature of global climate change, the court would be required To supervise the government’s compliance with any suggested plan for many decades.”
♦  “Injunctive relief could involve extraordinary supervision by this court. . . . [which] may be inappropriate where it requires constant supervision.”
♦ “Absent [long term] court intervention, the political branches might conclude . . . that economic or defense considerations called for continuation of the very programs challenged in this suit,”
♦ “Not every problem posing a threat—even a clear and present danger—to the America Experiment can be solved by federal judges.”
♦ 
“That the other branches may have abdicated their responsibility to remediate the problem does not confer on [federal] courts . . . the ability to step into their shoes.”

To repeat: The young people seek only that the court order the government to develop a plan to phase out fossil fuel emissions. Such an order would not, as Hurwitz suggests, require the judiciary to also design, supervise, or implement the plan, activities that properly belong to the political branches.

Hurwitz expresses concern about the “host of complex policy decisions” that go into making a plan. Such policy decisions would, he suggests,  ‘range broadly’, be “long lasting”, and require “extraordinary  supervision.” They would also be “delicate, complex, and involve large elements of prophecy.” Surely he jests. Here’s how a government actually directs its policy issues: It sets a course according to the ideological preferences of the people running it. The ship of state than plows ahead until (a) it runs aground, forcing a change of course, or (b) it hits a rock and sinks, forcing a change of government.

What would an uncomplicated plan to phase out fossil fuel emissions look like? Assuming a government run by rational actors, it would look like this: The President and his Treasury Department have the authority, without  congressional action or approval, to impose taxes in order to further the administration’s agenda. On receiving an order from the court to develop a plan, the President would impose a tax (based on CO2 content) on fossil fuels at the well head or mine, and at ports of entry. He/she would set the tax level high enough for market forces to begin eating away at fossil fuel use in favour of renewables. Thereafter, the administration would increase the tax level incrementally to achieve a certain reduction in CO2 emissions (say 60%) by a certain date (say 2040).

How difficult would it be for “the judiciary to pass judgement on the sufficiency of the government’s response to the order.” Not difficult at all. The government’s own Energy Information Administration (EIA) collects energy statistics and publishes the information regularly. The judiciary would see for itself the amounts of fossil fuel consumed, and therefore the amount of CO2 emitted. That metric alone would enable the judiciary to judge, mathematically, the effectiveness of the government plan.

The appeal court’s majority opinion amounts to an elaborate excuse for doing nothing. The judges, after showing, step by step, that the plaintiffs have standing, fudge the final ‘redressability’ question. Then, rather than admit that the district court has the power to order the government to make a plan, the judges go in search for reasons why such a court order should not be issued in the first place. They point to imagined complexities, the striking breadth of the young people’s claims, the separation of powers, and so on. Hurwitz quotes Judge Cardozo as follows: judicial commissions are bound “to exercise a discretion informed by tradition, methodized by analogy, disciplined by system.” Not good. Discretion will not help fend off global warming. What the young people and the country need from the judiciary is  spunk, even if that means busting tradition.

Granted the relief the young people seek is formidable. It would require the government to abandon its present fossil energy policies, and instead, learn to love and promote renewables. It would generate apoplectic opposition from the oil & gas industry and its supporters in the political branches. On top of all that, there’s an ogre in the White House who keeps an Attorney General for a pet. The potential for stonewalling, sabotage, or outright interference is great. The question is, is the judiciary co-equal with the other two branches of government or has it become a de facto branch of the other two? Now is the time for judges to prove the former.

Photo of solar array with coal-fired power plantin background
Energy transition in progress. Solar array; Soon to close Comanche coal-fired generating station in background. Location: Pueblo, Colorado. Image credit: Rick Wilking/Reuters

New York v. ExxonMobil — the climate fraud case

Global warming — the rise in the atmosphere’s average temperature since pre-industrial times — forms the background to the State of New York v. the ExxonMobil Corporation lawsuit.

Chart of ice core data showing CO2 levels from year 1000 to1990’s
Ice core data showing CO2 levels from year 1000 to 1990’s. Image: CSIRO

Before 1800, the concentration of CO2 in the atmosphere fluctuated around 280 ppm (see chart above). The level of CO2 began its steep rise around 1800 due to the heavy use of coal during the industrial revolution. By the 1990’s, the continued burning of fossil fuels had  raised the CO2 level to 350 ppm. Today the level exceeds 411 ppm (NOAA-ESRL, March 2019).

CO2 in the atmosphere traps heat from the sun, a result of the greenhouse effect. As the level of CO2 increases, so does the atmospheric temperature. The Paris Climate Agreement set a goal of “holding the increase in the global average temperature to well below 2°C (3.6°F) above pre-industrial levels.” As of this date (March 2019), the average increase has already exceeded 1°C.

ExxonMobil does not deny that global warming is occurring. Nor does it deny that burning fossil fuels is the major cause of it. It is also fully aware of the various government actions being taken worldwide to limit the burning of fossil fuels. What the company is supposed to do is incorporate that knowledge into its financial statements so that investors can judge for themselves whether or not to risk their money. This requires that the company anticipate future government actions, such as, for example, the imposition of carbon taxes, and calculate their financial effects. What the lawsuit alleges is that the company lied to its investors about the potential impact of such actions. In other words, it deliberately underestimated the risks.

The New York Attorney General in her filing of October 24, 2018, against the company puts it more strongly. Exxon, the filing says, perpetrated a “longstanding fraudulent scheme … to deceive investors and the investment community … concerning the company’s management of the risks posed to its business by climate change.” Considering that the AG’s office spent three years investigating Exxon before charging it with fraud, you can bet that whatever the company is accused of doing, it won’t be easy to explain or prove in court.

Which of the parties involved in this lawsuit deserves support or sympathy? None of them. Not the investors. Not the Attorney General’s office. Certainly not ExxonMobil. Whether or not Exxon is found guilty of fraud, we know that it is guilty of pushing its product onto the market by any means it can get away with including: heavy lobbying of government; ladling out election financing to friendly politicians; feeding money to pro-industry organizations (propaganda outlets).

The internet provides investors with the same global warming information available to the Exxon Corporation. The risks of investing in the fossil fuel industry are plain to see. Signs of the industry’s slow but inevitable decline are already evident. Just how slow is anybody’s guess. Spreadsheets from corporate accountants will not aid in the guessing. The risk-free option is not to invest in the industry.

According to Bloomberg News (Oct. 24/18), the State of New York holds about $1.5 billion worth of Exxon stock. The investment includes “the state’s common retirement fund, with more than 1 million employees and retirees, and the New York State Teachers Retirement System, with nearly half a million members.” Considering that New York is a member of the U.S. Climate Alliance, and therefore supposedly committed to upholding the objectives of the 2015 Paris Agreement on limiting global warming, it strikes me as odd, hypocritical even, that the state retains its investment in a fossil fuel company, particularly one that’s being sued by its own Attorney General.

Some people say that the Trump administration’s opposition to the Paris Climate Accord, and its total support of the fossil fuel industry, should make it unnecessary for business, or the courts, or investors, to take global warming seriously. Those people are wrong. Dealing with the Trump Administration is like dealing with a monkey in a dining room leaping about spilling drinks, snatching food off plates, shitting on the table cloth. The prudent diner will wait until the monkey is removed before ordering a meal.

Gatehouse entrance to ExxonMobil headquarters, Irving TX
Gatehouse entrance to ExxonMobil headquarters, Irving TX. Image: Google