Despite Recent Setbacks, Juliana and Other Climate Suits Deserve their Day in Court
On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."
Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 young people ranging from eight to nineteen years of age, and a climate scientist acting as guardian for future generations. They asserted that the U.S. Constitution protects the right to a "climate system capable of sustaining human life," something that had not been recognized by a federal court until Aiken issued her opinion in the case.
Furthermore, the violation the youth plaintiffs alleged was quite extraordinary – that, for at least the past half century, the U.S. government has acted in violation of their rights because, in full knowledge of the grave danger that fossil fuel use and production presents to the climate system, it nevertheless systematically promoted the development of a fossil fuel …
From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.
Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel …
When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might as well be conservatives' code words to describe something that will cause more trips to the emergency room for urban children who suffer from asthma, more toxic contaminants in our drinking water, more irreversible degradation of fragile wetlands, and more runaway climate change.
To wit, it was not so not long ago when opponents of regulatory safeguards used these exact words – modernize, simplify, and clarify – …
Originally published on Environmental Law Prof Blog. Reprinted with permission.
This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead …
It's no secret that President Trump has harassed staff at federal agencies since his first moment in office. Days after his inauguration, he blocked scientists at the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) from talking to the press and the public. He famously cracked down on federal labor unions and chiseled early retirees of their expected pension benefits. Now he's requiring hundreds of staff from USDA's Economic Research Service and the Bureau of Land Management to leave their homes in the Washington area and move to offices out West or risk losing their jobs.
The administration has been particularly disdainful of the professional staff at the EPA – the people who work every day to make sure you can take a dip in the lake, fill your lungs on a morning walk, or drink from the tap without some nagging fear of …
This op-ed was originally published in The Hill.
The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).
The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.
NEPA relies on four key mechanisms.
First, it directs all federal agencies to accompany proposals for “major federal actions significantly affecting the quality of the human environment” with a detailed environmental impact statement (EIS) comparing the environmental impacts of the proposed action …
It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.
Members of the legal profession are bound by a code of professional ethics that applies in the state in which they practice, and this code spells out their professional responsibilities to their clients, to the legal system, and to broader society. As Flatt explains in an article in the current issue of the Environmental Law Institute's Environmental Forum, it's time to review these rules of professional responsibility through the lens of climate change. In particular, his article looks at the climate implications of Rule …
Originally published on Legal Planet. Reprinted with permission.
Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.
Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.
These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited …
Originally published on Legal Planet. Reprinted with permission.
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …
Originally published on Legal Planet. Reprinted with permission.
Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years, as I discussed in an earlier post.
Let's start with the temperature. The Guardian reports that in the year up to July 2019, Alice Springs (in the interior) had 55 days above 104°F. On New Year's Eve of 2018, it set a new record of 113°F. In December 2019, The Washington Post reported, temperatures soared to 104° (40° Celsius) in most of the nation's major cities, with inland areas of Victoria, New South Wales, and South Australia possibly eclipsing 122 degrees (50 Celsius). December 17, 2019, became the hottest day in Australian history, with an average high temperature across country of 105.6°. Two days …
