Juliana v. United States: the battle heats up

My earlier post dated January 19th, outlined ‘Juliana v. United States’,  the youth climate lawsuit. The suit claims that the federal government, because of its ongoing failure to limit fossil fuel extraction and use, has violated the young people’s constitutional rights to life, liberty, and property, and failed to protect the country’s public-trust resources. The case is currently held up in the Ninth Circuit Court of Appeals following an appeal by the government, the latest of many attempts by the Trump administration to derail the action.

Photo: James R. Browning Courthouse, San Francisco CA
James R. Browning Courthouse, Ninth Circuit Court of Appeals, San Francisco CA. Image: Google

On February 4th., the court agreed to begin hearings on the government’s appeal next June, in Portland, Oregon. Also on February 4th., Donald Trump nominated David Bernhardt to head the U.S. Department of the Interior. Bernhardt had become acting head following the departure of scandal-plagued Ryan Zinke.

Photo of David Bernhardt
David Bernhardt. Photo credit: D. Zalubowski/AP

It’s expected that Mr. Bernhardt, a former fossil fuel industry lobbyist, will continue to work on advancing  the President’s “energy dominance” agenda for the country. According to the New York Times, this has already involved “some of the largest rollbacks of public-land protections in the nation’s history . . .  opening millions of acres of public land and water to oil, gas and coal companies.” The Guardian of Dec. 16, 2018 quotes Natural Resources Defense Council’s Bobby McEnaney: “It’s not so much who [Mr. Bernhardt] has helped, it’s who hasn’t he helped in industry so far. The notion that he could extricate himself from benefiting his former clients is impossible.”

Reduced to its essential meaning, the young people’s lawsuit is accusing the Trump administration of ecocide — the destruction of the natural world, including all the humans in it. Underlying that accusation is the fact that, while the plaintiffs are young, the people causing the destruction are old — like Trump. It follows that while the old people have only a few years left to live, the young people have their whole lives ahead of them, provided the old people can be prevented from killing them prematurely.

Despite the Juliana lawsuit, and perhaps in spiteful reaction to it, President Trump, with the help of Mr. Bernhardt and many others like him, has actively persisted in his objective, which is to open up every square foot of the country’s federal lands to fossil fuel extraction. His current push to open the Atlantic and Pacific Outer Continental Shelves to offshore drilling, has caused even some Republican legislators to become queasy.

Map of USA showing federal lands
U.S. federal lands. Map produced by Bureau of Land Management, Washington DC

On February 7th, reacting to the Trump administration’s nose-thumbing behaviour, the Juliana plaintiffs filed an “urgent motion” in the Ninth Circuit Court, asking it to grant an injunction preventing the government (pending the resolution of its appeal) from: mining coal on federal public lands; engaging in offshore oil and gas exploration on the Outer Continental Shelf; developing new fossil fuel infrastructure such as pipelines and fossil fuel export facilities.

Accompanying and following the motion were supporting briefs from more than 30 diverse groups and individuals, including one from Zero Hour (zerohour.org) on behalf of 32,340 children who responded to an online petition.

The government filed its opposition to the plaintiffs motion on February 19th.

 

Idaho: safe from Sea Level Rise but not from Drought and Fire

Crown fire in mixed conifer forest, southern Idaho, 2016
Crown fire in a mixed conifer forest, southern Idaho, 2016. Photo by Karl Greer, U.S. Forest Service

Idaho, an inland State, most of which lies above 2,000 feet in elevation, is safe from Sea Level Rise, but not from the warming atmosphere that’s causing it. Average summer temperature across the Pacific Northwest are predicted to rise by several degrees in the coming years. That will translate into serious trouble for the regions forests.  The Seattle Times of Sept. 11, 2017, quotes Amy Snover, director of the Climate Impacts Group at the University of Washington: “We expect to see more fires and bigger fires. People are just beginning to wake up to this, but public lands managers do think about this and the potential risks.”

The 2018 fire season validated that prediction. The  image below shows a satellite snapshot (as an overlay on a map of the U.S.) of dense smoke across the West Coast on the morning of August 20, 2018.  The smoke cover extends north into Canada, south to Texas, and east to the Great Lakes. Idaho is hidden.

Satellite snapshot of wildfire smoke across the U.S. Aug. 20, 2018
Satellite snapshot of wildfire smoke across the U.S. Aug. 20, 2018. Image: NOAA

According to the U.S. Forest Service budget report for 2015, climate change has extended the wildfire season by an average of 78 days per year since 1970. Funding for fire fighting has remained flat for years, and rising costs have repeatedly broken the Service’s annual budget. Last year, Congress passed a ‘fire funding fix’. The bill, which will become effective in 2020, provides $2.25 billion to cover fire fighting costs that exceed regular appropriations. In addition, the bill contained half a billion in emergency fire fighting funds for 2018.

Mike Crapo, U.S. Senator from Idaho, was the principal backer of the ‘fire funding fix’. Speaking about the new funding regime at the National Interagency Fire Center in Boise, Idaho, on May 3, 2018, he had this to say:

“It’s taken us . . . thirty years to get here in terms of what was not the adequate management we needed to be putting into place on the ground. We are not going to solve it all in one fire season. So it’s true, we’re still going to be dealing with some of the things that have been building up over time and are giving us the problems that we have now. That being said, we are now going to start managing properly, and, as Vickie Christiansen, the Acting Chief of the [U.S.] Forest Service said, we are now going to move toward that point — which will take us some years to achieve — but to that point where fire is the servant not the manager of our forests.”

Mike Crapo, U.S. Senator from Idaho
Mike Crapo, U.S. Senator from Idaho. Image: McClatchy Videos

Senator Crapo doesn’t believe (or refuses to admit) that Global Warming is real, or that it’s an unfolding catastrophe caused by the burning of fossil fuels. That’s why he doesn’t mention the impact of climate change. As far as Crapo is concerned, the increasing number of wildfire disasters are due to the cumulative effect over thirty years of improper forest management practices, and that the problems will be solved because now, the Forest Service will have enough money to do a better job. You’ll recall how the Service has already received tips from President Trump on ways to improve their forest management practices.

Will increased funding enable the Forest Service to put a stop to the uncontrollable burning up of the western forests? It can help. It can delay. It can mitigate. But It can’t succeed until the root cause of the problem — the increasing temperature of our planet’s atmosphere — is brought under control.

On June 3, 2017, President Trump announced his intention to pull the United States out of the Paris Climate Accord. A month earlier, 22 Republican Senators jointly sent a letter to the President urging him to dump the deal. Mike Crapo and his fellow Idaho Senator, Jim Risch, were among the signatories. According to The Guardian of June I, 2017, the 22 Senators had collectively received $10.7 million in campaign donations from fossil fuel industries, over the previous three election cycles (2012, 2014, 2016). Mike Crapo’s share was $110,250. Jim Risch received $123,850.

America currently remains a party to the Paris Accord. Three years must elapse before its withdrawal becomes official. Is there any possibility that Idaho will support efforts to reverse President Trump’s decision to withdraw? Considering Idaho’s current standing as a solid red State, and the apparent fealty of its Republican politicians to the fossil fuel industry, that seems unlikely. Every stick of Idaho’s forests will burn before some minds are changed.

There is, however, an indication that light has begun to penetrate Idaho’s Republican darkness.  Brad Little, a Republican, was sworn in as Idaho’s 33rd Governor on January 4th. According to High Country News, the Governor, while addressing the Idaho Environmental Forum on January 16th, told the crowd that “Climate Change is real.” His statement reportedly reduced the crowd to stunned silence. Responding to questions later, he said, “Climate is changing, there’s no question about it. We’ve just gotta figure out how to cope with it and we gotta slow it down. Now, reversing it is going to be a big darn job.” (quote from Idaho Press)

Map of the United States showing location of Idaho
The red State of Idaho. Image: Wikipedia

Is the federal government deliberately trampling on your fifth amendment rights? The young plaintiffs in Juliana v. United States say yes

Photo of Kelsey Juliana, plaintiff
Kelsey Juliana, plaintiff in Juliana v. United States. Image from Ourchildrenstrust.org Photo: Robin Loznak

Kelsey Juliana is the named plaintiff in Juliana v. United States, which is currently on hold in the Ninth Circuit Court of Appeals. In 2015, Kelsey and twenty other young people (aged 7 to 18 at the time), sued the Federal Government in U.S. District Court, Oregon, for causing life-damaging Climate Change impacts. Listed in the lawsuit are the specific complaints made by each of the young people.

Here’s a summary of Kelsey’s complaint:

Kelsey was born and raised in Oregon. She depends on the resources of the state for her survival and wellbeing. For sustenance she drinks Oregon’s fresh waters and eats the food it produces, including: seafood from Oregon’s marine and estuarine waters; food grown by farmers in the Willamette Valley; and food grown by her family in their garden. For recreation and vacationing she enjoys outdoor activities such as visiting the beaches and tide pools along Oregon’s coast; snowshoeing, cross-country skiing, and snow camping in winter; hiking, canoeing, and backpacking in warmer weather.

The suit alleges that the affects of Climate Change — drought, warmer winters, declining snowpack, increasing summer temperatures, algal blooms on lakes, intense wildfires — are already harming Kelsey’s drinking water, her food sources, and all the places she enjoys visiting. The suit also contends that in the coming decades, Kelsey will suffer even greater harm from the impacts of ocean acidification and rising sea levels, all because of the federal government’s actions and inactions.

Kelsey’s complaint goes on to say that the federal government has “caused psychological and emotional harm to Kelsey as a result of her fear of a changing climate, her knowledge of the impacts that will occur in her lifetime, and her knowledge that [the government is] continuing to cause harms that threaten her life and wellbeing. As a result of the acts and omissions of [the federal government], Kelsey believes that she will not be able to continue to do all of the things described in this Complaint for her life, health, and enjoyment, nor will she one day be able to share those experiences with her children.”

Photo of Oregon coastal mountains and beach
Oregon Coast. Image from Unsplash.com Photo by Vasiliki Volkova

People blame the government for all sorts of things. What’s so special about Kelsey’s complaint? Nothing, except for the fact that the lawsuit links it directly to the U.S. Constitution.

The Due Process Clause of the Fifth Amendment bars the federal government from depriving a person of ‘life, liberty, or property’ without ‘due process of law’. Kelsey and her co-plaintiffs are claiming that the federal government is violating their due process rights by knowingly causing the climate to change to such an extent that they are being deprived of their way of life and the things that make it livable. Items I & II of the suit’s statement of facts, spell it out:

I. THE FEDERAL GOVERNMENT HAS KNOWN FOR DECADES THAT CARBON DIOXIDE POLLUTION WAS CAUSING CATASTROPHIC CLIMATE CHANGE AND THAT MASSIVE EMISSION REDUCTIONS AND A NATION-WIDE TRANSITION AWAY FROM FOSSIL FUELS WAS NEEDED TO PROTECT PLAINTIFFS’ CONSTITUTIONAL RIGHTS.
II. IN SPITE OF KNOWING OF THE SEVERE DANGERS POSED BY CARBON POLLUTION, DEFENDANTS CREATED AND ENHANCED THE DANGERS THROUGH FOSSIL FUEL EXTRACTION, PRODUCTION, CONSUMPTION, TRANSPORTATION, AND EXPORTATION.

Photo of the Navajo Generating Station , Arizona
Coal burning power plant, the Navajo Station, Arizona. Image from nbcnews.com

The federal government does not want to see this lawsuit go to trial. Government lawyers have, several times, petitioned the Oregon District Court, the Ninth Circuit Court, and the Supreme Court, trying to put a stop to it. The government hasn’t yet denied the claim that its climate actions have caused harm to the young plaintiffs. Rather, it has attempted to derail the suit by claiming that they have no right to bring their complaints to court in the first place.

The Ninth Circuit Court is expected to rule soon on the hold it placed on the suit last December. If the ruling is in the plaintiffs favor, the Oregon District Court will set a trial date.