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

Why Trump’s ‘Energy Dominance’ policy is ‘hugely’ bad for the country

Photo of Vladimir Putin and Fiona Hill, Moscow, November 2011
Vladimir Putin and Fiona Hill at 8th annual meeting of Valdai Discussion Club, Moscow, November 2011. Image: Brookings Inst.

Dr. Fiona Hill, former official at the U.S. National Security Council, specializing in Russian and European affairs, appeared as a witness in the November 2019 U.S. House hearings on the impeachment of President Donald Trump. During questioning from House members, the following exchange took place on the subject of hydraulic fracking:

Mike Conaway (R-TX): “Just that the fracking is a controversial issue within our nation. If we did away with fracking, the United States would not be in a position today to dominate the oil production within the world and would play into strengthening Putin’s hands with respect to the oil—”

Fiona Hill: That’s correct. And actually I’d like to point out that in November 2011, I actually sat next to Vladimir Putin at a conference in which he made precisely that point. It was the first time that he had actually done so to a group of American journalists and experts who were brought to something called the Valdai Discussion Club. So he started in 2011 making it very clear that he saw American fracking as a great threat to Russian interests. We were all struck by how much he stressed this issue and it’s since 2011, and since that particular juncture, that Putin has made a big deal of this.

Putin’s concern about hydraulic fracking was justified. By 2011 the U.S. had surpassed Russia to become the world’s largest producer of natural gas. By 2014 it had equaled and by 2017 surpassed Saudi Arabia to become the world’s largest producer of petroleum (See following charts).

Charts showing U.S. and Russian oil and gas production
Image credit: U.S. Energy Information Administration, Aug 20, 2019.

Donald Trump became U.S. President in January 2017. Speaking at a Dept. of Energy event (Unleashing American Energy) June 29, 2017, he told the crowd that “my administration will seek not only American energy independence that we’ve been looking for so long, but American energy dominance. . . . We will be dominant. We will export American energy all over the world, all around the globe.” (Whitehouse transcript).

To be clear, in Trump world, energy dominance means producing more oil and gas than any other country. It has absolutely nothing to do with renewable energy or the transition to it. Mr Trump’s speech was a message to the fossil fuel industry that Big Oil’s domestic and foreign concerns would be addressed. Here’s a partial list of what the administration is doing or trying to do to fulfill that promise:

♦ Eliminate regulations limiting pollution caused by extracting and burning fossil fuels. ♦ Open public lands to fossil fuel exploitation. ♦ Approve all oil and gas pipelines and criminalize opposition to them. ♦ Create new offshore oil leasing programs. ♦ Kill federal initiatives that promote energy efficiency. ♦ Use the power of federal departments and agencies to block or hinder the country’s transition to renewable energy. ♦ Use whatever means necessary to secure export markets for surplus natural gas and block foreign competitors accessing those markets.

Domestically, President Trump’s ‘Energy Dominance’ policy is a disaster in progress. The oil and gas industry’s mad scramble to ramp up production beyond market saturation (in defiance of environmental concerns) has nothing to do with sound business practices. Rather, it has everything to do with the industry’s fear of global warming — a problem of its own making — and the growing demands for limits on fossil fuel production. It follows that the industry’s real objective is to build into the economy as much infrastructure as possible (pipelines, gas-fired power plants, export terminals, etc.) in as short a time as possible, thereby delaying for as long as possible the inevitable transition to renewable energy.

As recently as 2016, official U.S. foreign policy was “to build and sustain a more democratic, secure, and prosperous world for the benefit of the American people and the international community”. Today, according to the Dept. of State, America’s foreign policy is “to advance the interests and security of the American people”. This diminished vision of America’s role in the world brings it into line with President Trump’s indifference to foreign negotiations more complex than your basic quid pro quo. His gullibility on the international stage has led to a series of incredibly incompetent foreign policy initiatives. It also accounts for his apparent belief that ‘Energy Dominance’ gives America exceptional leverage in its international energy dealings. As U.S. attempts to hobble Russia’s natural gas exports to Europe have shown, it doesn’t.

According to a U.S. government white paper titled ‘Russian Strategic Intentions’ (approved for release May 2019 by the Dept of Defense), President Putin is “adhering to a global grand strategy” which aims to: “Reclaim Russia’s influence over former Soviet nations; Regain recognition as a ‘great power’; Portray itself as a reliable actor . . . in order to gain economic, military, and political influence over nations worldwide . . .Key to Russia’s ‘grand strategy’ is the exploitation of the country’s vast natural gas reserves. Proceeds from gas sales to Europe and elsewhere provide the Kremlin with the funds it needs to continue pursuing its foreign policy objectives.

For Russia, competition from the gusher of American fracked gas, and U.S. efforts to export the surplus to Europe, translates into lost sales, depressed prices, and the need to extract and sell even more gas so as to stay ahead. Russia’s Nord Stream 2, a second 1,200 km pipeline linking Russia to Germany via the Baltic Sea, is intended to help the country do just that. The project is a joint venture between Russia’s Gazprom and several European energy companies. Allegedly concerned about Russian influence over Europe, the Trump administration has been trying to convince the European Union to pull out of the deal. For example, Bloomberg Dec. 17, 2019, reported that Secretary of State Michael Pompeo, during a visit to Poland earlier that year, said that Nord Stream 2 “funnels money to Russians in ways that undermine European national Security.” More to the point, Trump sees the pipeline as an obstacle to his dream of massive liquid natural gas (LNG) exports to Europe, never mind European security.

Map showing route of Nord Stream 2 pipeline joining Russia to Germany via Baltic Sea
Route of Nord Stream 2 pipeline between Russia and Germany. Source: Gazprom

Unimpressed by Trump’s ‘Energy Dominance’ policy, the Europeans have stuck with the Russian project (on the basis of price and convenience). Trump, in a fit of pique, imposed sanctions 21 Dec. on companies involved in laying the pipeline. But since the project is about 90% complete, sanctions will only delay the project, not stop it. Russia plans to finish the job with its own pipe laying ships.

Photo of Pioneering Spirit, Swiss Co. pipelaying vessel
Allseas (Swiss Co) pipe laying vessel ‘Pioneering Spirit’. The ship quit work on Nord Stream 2 following imposition of U.S. sanctions Dec. 2019. Image credit: Allseas

When the pipeline is finally completed, Putin will likely consider it a win. He’ll be wrong. Here’s the thing about dealing in fossil energy: while producers and users are dependent on each other, producers are more dependent on users than visa versa. Producers do all the heavy work. Users have options. They can stop using one fuel in favour of another on the basis of cost, or efficiency, or politics. Or they can switch from fossil energy to renewable energy whenever it becomes available. Producers on the other hand are stuck with what they can pull from the ground. More importantly, they must now contend with a fast approaching and overwhelming horror, the thing oil companies executives hate to talk about in public — global warming.

Atmospheric CO2 continues to rise unabated (see NOAA graph below). It reached a spring peak last year of 414.7 ppm, a record. The highest level reached during 800,000 years preceding the industrial revolution was 300 ppm. Any country that ties its future to the fossil energy business is making a big mistake. The U.S. and Russia are like two kids on a beach, each claiming to have built the biggest sandcastle, each trying to smash the other’s construction, both oblivious to the incoming tide.

Trump’s ‘Energy Dominance’ policy has done nothing to advance “the interests and security of the American people.” Rather, it has exacerbated global warming — an existential threat to all Americans — and turned the country into a fossil fuel pusher, one of many, all privately worried that renewables are going to put them out of business. Of course, as the old adage puts it, ‘it’s an ill wind that blows no good’ — Oil Company executives are laughing all the way to the bank.

Image from Keystone Cops film
Incoming Tweet. President Trump’s foreign policy team. Image credit: Keystone Cops

How to survive global warming — Nail the culprits before they nail us

Atmospheric carbon dioxide (CO2) continues its rapid rise. Last month (May 2019) CO2 in the atmosphere set a new record with the average peaking at 414.7 parts per million at NOAA’s Mauna Loa Atmospheric Baseline Observatory (see graph below). 

NOAA graph showing atmospheric CO2 2014 to present
The red line represents the monthly mean values. The black line represents the same as a moving average of 7 adjacent seasonal cycles, after correction for the average seasonal cycle. Image: NOAA

The highest level of CO2 in the atmosphere during the 800,000 years preceding the industrial revolution was 300 ppm. That occurred about 330,000 years ago, long before modern humans arrived on the scene (see graph at bottom of post).

What is being done about the present accumulation of greenhouse gas in the atmosphere? Here’s what the World Bank (April 2018) says: Some 40 countries and more than 20 cities, states and provinces already use carbon pricing mechanisms, with more planning to implement them in the future.  Together the carbon pricing schemes now in place cover about half their emissions, which translates to about 13 percent of annual global greenhouse gas emissions.”

As the above graph shows, these carbon pricing efforts, while well meaning, have had no noticeable effect on the rise in atmospheric CO2. Is it possible that if the carbon pricing efforts become more widespread, their effect will become noticeable? That is unlikely. Why? Because the carbon pricing schemes currently in use target the emissions from fossil fuels rather than the fossil fuels themselves.

In a shooting war, the bullets are not the enemy, the people loading the guns and pulling the triggers are the enemy. To win the war, you duck the bullets and focus your attack on the gunmen. In our climate war, we need to look past the CO2 emissions and set our sights on the gunmen, the people who extract fossil fuels from the ground, the oil and gas industry. 

The best way to fight the industry is to replace fossil fuel based technologies with clean technologies. That’s already happening simply because the cost of clean technologies has dropped sharply. Clean technologies are now cheaper and more efficient than fossil fuel based technologies and they are starting to be used in large areas of the economy (see May 27 post — NY Governor Cuomo goes for clean power technology in a big way). The fossil fuel industry will eventually collapse because of its inferior economics. But not fast enough.

Applying a carbon tax is a way to speed things up. However, to be effective the tax must be targeted, not against the CO2 emission from fossil fuels, but against the carbon content of the fossil fuels before they are burned. The most effective time and place to apply the carbon tax is when and wherever the fuels are extracted from the ground or imported into the country. The correlation between the amount of tax charged and the resulting reduction in oil and gas produced will be close, unambiguous, and directly measurable; a huge advantage for the administrators.

Is it right to single out a particular industry and tax it so as to throttle its production? Of course it is. Our survival depends on it. Being fair to the enemy is not a winning strategy. In any case, fossil fuel companies do not deserve equitable treatment. They knew for years that the use of their products would cause global warming. Did they inform the public? No. They kept the knowledge to themselves, continued pumping fossil fuels, and lied about the dangers.

Keep this in mind:
The oil and gas industry is in favour of taxing CO2 emissions. Why? Because it provides a smoke screen in which to hide. When CO2 emissions are taxed, everyone pays. It allows the oil and gas industry to masquerade as just another industry paying its fair share. It is not just another industry, it is the culprit. As I write this post, the culprit is busy promoting a scheme to 
tax CO2 emissions, a scheme much to its advantage (see May 12 post — Oil Industry promoters want to pay Americans not to complain about global warming).

Subsidize clean technologies. Sue oil and gas  corporations in court. Ban fossil fuel industry tax breaks. Dump investments in oil and gas. Dump politicians who support the oil and gas industry. Those are all great ways to hit the fossil fuel industry and its promoters. Here’s some pertinent advice:

“hit them fast, hit them hard, hit them a lot” — Jack Reacher (Lee Childs’ fictional character)

Graph showing Atmospheric carbon dioxide concentrations in parts per million (ppm) for the past 800,000 years, based on European Project for Ice Coring in the Antarctic (EPICA) data. Image: NOAA National Centers for Environmental Information (NCEI).
Atmospheric carbon dioxide concentrations in parts per million (ppm) for the past 800,000 years, based on European Project for Ice Coring in the Antarctic (EPICA) data. Image: NOAA National Centers for Environmental Information (NCEI).