Election 2020 Politics

The Energy 202: Youth climate lawsuit dismissal shows challenge of using courts to tackle climate change

THE LIGHTBULB

It was supposed to be the “trial of the century.” Now the case won’t even get its day in court. 

The dismissal of a landmark, youth-led climate lawsuit late last week is a sign of how hard it will be to use the courts to solve a problem as big as climate change. 

That’s a wrench in the plans of environmental advocates and their Democratic allies who are frustrated with Congress’s failure to pass major climate legislation and have increasingly turned to the court system to stop what they see as the pressing ecological and economic crisis of rising global temperatures. 

“From the outset, it was a big ask,” said Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law. “Courts simply do not have it in their power in the United States to command the entire energy system,” he added.

In Friday’s 2-to-1 decision, a panel of federal appeals court judges in Oregon threw out a lawsuit brought by nearly two dozen children and young adults against the U.S. government, my colleague Brady Dennis reported.

The 21 young people and the advocacy group representing them in court, Our Children’s Trust, sought to compel the government to cut its support for fossil fuels and drawn down greenhouse gas emissions. They originally filed their case in 2015.  

But the U.S. Court of Appeals for the 9th Circuit ruled that even though the plaintiffs “made a compelling case that action is needed” to cut emissions, the young people ultimately did not have the legal standing to bring the case, known as Juliana v. United States. 

This is the second loss for environmental advocates in a much-watched climate case in as many months. In December, ExxonMobil won its legal battle with the state of New York over accusations the oil and gas company misled shareholders about the financial risks of climate change to its bottom line. 

Like the federal appellate judges, New York Supreme Court Judge Barry Ostrager treated the issue of climate change seriously in his ruling in favor of Exxon. “Nothing in this opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change,” he wrote. 

But Ostrager found the New York attorney general’s office fell short in showing Exxon violated anti-fraud law when estimating the cost of complying with future climate regulations. 

The young plaintiffs made their unsuccessful case based a higher legal power — the U.S. Constitution. They accused the federal government of violating what they claimed to be their constitutional right to a healthy environment with its decades of failure to halt global warming. 

The Trump administration, which inherited the case from the Obama administration, contended that no fundamental constitutional right existed and that the issue of combatting climate change should be left to Congress and the White House. 

Environmentalists seized on that argument to ask why the Trump administration is rolling back regulations meant to address rising greenhouse gas emissions. 

“This ruling underscores this responsibility,” said Ken Kimmell, president of the Union of Concerned Scientists. “We say to the Trump administration and Congress: We are waiting.”

The young people’s argument is not without precedent — at least internationally.  

A court in Colombia ordered government to come up with a plan to combat climate change and stop the destruction of the Amazon, pointing to the country’s own constitution. And a court in the Netherlands ruled that the Dutch government’s inaction on climate change violates international human rights law. 

But in Oregon, Judge Andrew D. Hurwitz ruled that it was “beyond the power” of his court to force the federal government to set climate policy. That case, Hurwitz wrote, “must be made to the political branches or to the electorate at large.” 

The ruling is one in a long line of federal courts, long leery of weighing in on fraught policy questions, kicking the issue of climate change back to their legislative and executive counterparts. The Supreme Court made clear in a 8-0 decision in 2011 that it is up to the experts at the Environmental Protection Agency, not federal judges, to regulate greenhouse gases under the Clean Air Act. 

“Courts are still going to have a very vital role to play” in climate change, said Mark N. Templeton, a University of Chicago Law School professor specializing in environmental law. But he added: “The judges seem to think there are limits on this.”

Yet that half-century-old Clean Air Act does not directly address carbon dioxide and other greenhouse gases. The closest Congress has come to comprehensive climate legislation was the last time Democrats fully controlled the legislative branch in 2009, when the House passed a cap-and-trade scheme that died in the Senate.

So as long as Congress remains at an impasse, those demanding immediate action on climate change will turn to the courts.

Several state and city governments, including Baltimore, Rhode Island, San Francisco and Oakland, have pending tort claims against in state courts against oil and gas companies for the damage caused by the heat-trapping pollution of their products.

And a number of candidates for the Democratic presidential nomination, including Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.), have promised to try to hold the oil industry legally liable for climate change should they win.

“[I]f bad actors like Exxon break the rules and deliberately lie to government agencies,” Warren wrote last year, “my plan will treat them the same way the law treats someone who lies in court—by subjecting them to potential prosecution for perjury.”

Read more here:

POWER PLAYS

— Elizabeth Warren says Rick Perry should quit his latest gig: The Democratic presidential hopeful urged the former energy secretary to resign from the board of directors of Energy Transfer Partners, a major oil pipeline company. Perry rejoined the board of the company behind the controversial Dakota Access Pipeline soon after leaving the Trump administration. 

  • What Warren said: “This is exactly the kind of unethical, revolving-door corruption that has made Americans cynical and distrustful of the federal government,” she wrote in a letter to Perry.
  • And she has a plan for that: Warren cited her proposal for ethics legislation, the Anti-Corruption and Public Integrity Act, that would “prohibit corporations like Energy Transfer from hiring or compensating the Energy Secretary, or an other senior government official from an agency that Energy Transfer lobbied in the past two years.” The Army approved a final permit for Dakota Access shortly after Trump took office.

— IEA calls on oil and gas corporations to shift to clean energy: A report from the Paris-based International Energy Agency says oil and gas companies must adapt to provide clean-energy solutions worldwide, the Houston Chronicle reports. Such corporations currently spend less than 1 percent of their capital dollars on renewables and clean-energy projects.

  • What to do: “The biggest and easiest adjustment that oil and gas firms can make is cut down on their methane emissions, which is a big problem in areas such as West Texas’ booming Permian Basin. Methane, the primary component of natural gas, is a potent greenhouse gas that’s often released into the atmosphere — intentionally or not — while producing the more valuable crude oil from wells,” per the report. “ … Energy companies also must invest much more in cleaner fuels, such as hydrogen, advanced biofuels and biomethane. Within 10 years, alternative fuel spending must account for at least 15 percent of total investments in the fuel supply to help combat the growing threat of climate change, the report said.” 

— Puerto Ricans still waiting on disaster funds: The earthquakes that have rattled Puerto Rico have caused an estimated $110 million in damages for the island that has been waiting since September 2017 for the federal government to send disaster relief, The Post’s Arelis R. Hernández reports.

  • The latest: “President Trump, who has complained about wasteful spending on the island, signed a major disaster declaration Thursday — more than five days after Puerto Rico’s government made the request for more federal help. Hurricane Maria’s emergency declaration came the same day the tempest swept the island two years ago.”
  • The scene: “While the crumbled infrastructure and crushed buildings are the obvious signs of what has happened here, it is the people of Puerto Rico — most of them U.S. citizens — who display the suffering as a result of the delayed and deferred disaster dollars. Their anger and dismay spills over regularly, such as this weekend, as residents called for an islandwide strike to protest the discovery of a Ponce warehouse full of unused disaster supplies including bottled water, cots, propane gas tanks and diapers.”

— Federal funding will help red states with disasters, just don’t call it “climate change”: A new program will dole out billions to coastal states, including many in the South, as they prepare to deal with frequent storms, shifting coastal conditions, and other natural disasters worsened by climate change. But as the states explain why they need this funding, they’ll largely avoid referring to climate change, the New York Times reports.

  • The details: The $16 billion program was created by Congress and will be under the Department of Housing and Urban Development. It was developed following the disastrous wildfires and hurricanes of 2017 and is “meant to help states better prepare for future natural disasters. It is the first time such funds have been used to prepare for disasters like these that haven’t yet happened, rather than responding to or repairing damage that has already occurred.”
  • How the states are handling requests: Texas, which could get more than $4 billion, doesn’t mention “climate change” or “global warming” in a 306-page draft proposal. Instead, it refers to “changing coastal conditions.” In another example, South Carolina, which could get $158 million, refers to “destabilizing effects and unpredictability” after dealing with three serious storms in four years.

— Fires have reignited Australia’s environmental movement: After months of blazes, the wildfires that destroyed an area larger than Portugal, killed at least 25 people and brought down people’s homes have “electrified the politics of climate change here and altered the nation’s long-standing, if largely ineffective, environmental movement. Scientists say that rising temperatures — Australia has measured ­record-breaking heat during its summer — mutated the fire season into something more deadly and devastating than ever before seen,” The Post’s Scott Wilson reports.

  • The reckoning includes wrestling with coal dependence: “The future of the country’s reliance on coal, as its primary export and a key source of its energy, is being challenged more aggressively than ever with the fires and obviously warming climate as a vivid green-screen backdrop,” Wilson writes. “Reelected prime minister in May, Morrison has called for a federal inquiry into his government’s response to the fires. But he also has indicated he will not curtail his efforts to expand the coal industry, calling it an essential driver of jobs and tax revenue.”

— And Australia’s fires have upped pressure for climate focus at Davos: The wildfires in Australia, along with the recent blazes in California, as well as “rising sea levels, flooding and supercharged storms, are putting more pressure on the politicians, business executives, financiers, thought leaders and others who attend to show they are part of the solution to one of the world’s most pressing challenges,” the New York Times reports. “Some people in the financial industry said that environmental issues were being given greater weight in investment decisions despite setbacks like President Trump’s decision to pull the United States out of the Paris agreement on climate change. The president, who shunned the gathering in Davos last year, said he would go this time.”

— Trump administration allows Chevron to continue Venezuela operations: The U.S. Treasury Department has extended the sanctions waiver to allow Chevron to continue operating in Venezuela for three months. “The United States last year imposed sanctions that barred imports of Venezuelan oil and transactions made in U.S. dollars with Venezuela’s state-run oil company PDVSA. The move was designed to starve the country of oil dollars and oust President Nicolas Maduro,” Reuters reports. “ … Chevron and oilfield service firms Baker Hughes Co, Halliburton Co, Schlumberger NV, and Weatherford International have regularly received permission to remain in the country.”

DAYBOOK

Coming Up

  • The Senate Environment and Public Works Committee holds a hearing on the “Oversight of the Economic Development Administration” on Wednesday. 

EXTRA MILEAGE

— Mark your calendars: These are some of the most impressive celestial events expected this year, The Post’s Matthew Cappucci writes

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