Published on June 28th, 2018 | by Steve Hanley0
Courting Disaster: Why US Courts Will Fail To Address Climate Change
June 28th, 2018 by Steve Hanley
Last September, the cities of San Francisco and Oakland sued five of the world’s largest oil companies, asking a federal court to order them to help pay some of the costs those cities will incur to prevent damages from rising ocean levels. Their argument was simple. “You guys produced the oil that created the carbon emissions that are leading to rising sea levels. You have known for 50 years about the damage your products were doing yet you persisted in your efforts to market your products, earning trillions of dollars in profits along the way. Since your actions are now placing an economic burden on us, why shouldn’t you contribute some portion of those profits to help clean up the mess you created?”
Federal judge William Alsup held an extraordinary court hearing in March. The 5-hour long tutorial gave all sides an opportunity to educate the judge about climate science and its historical antecedents. On June 24, Judge Alsup dismissed the suits. In his ruling he said, in essence, “You are right. There is a problem. But it’s not a problem the courts are equipped to deal with.”
The judge’s words were couched in more legalistic language, of course. Here’s what he actually said in his written opinion. “Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefited. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?” He then dismissed the suits, saying, “The court will stay its hand in favor of solutions by the legislative and executive branches.”
Climate activists were quick to point out that this suit is just one of many and that the long, long legal fight against Big Tobacco had plenty of setbacks along the way. Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, tells Mother Jones, “This decision is not binding on any other court. It may be that individual judges hearing cases are influenced by it, but there’s no way to know whether that’s going to happen or not.”
The suit by San Francisco and Oakland was based on a claim that the oil companies had created a public nuisance. “Public nuisance is just one of the claims that has been made against the fossil fuel companies. There have also been trespass claims, private nuisance claims, failure to warn claims, and a number of other sorts of claims,” Burger says. “Those are not decided by this decision at all.”
The Political Question Doctrine
Among lawyers, Judge Alsup’s decision was not unexpected. Since the United States was created, the courts have been extremely reluctant to intrude on the powers of the legislative or the executive branch. The argument is that courts should deal with the law. Politicians should deal with politics. That seems a fair enough proposition, but despite the constant insistence from the conservative justices on the US Supreme Court that they must interpret the Constitution as it was originally written, America has changed rather a lot since 1789.
Just yesterday, Senator Mike Lee of Utah told NPR he is filing legislation to return the power to set trade policy, including tariffs, to Congress. He pointed out that over the past century, Congress has been only too glad to hand over that power, vested in it by the Constitution, to the President solely for the sake of political expediency. It is easier to tell the voters back home, “I didn’t vote for that tariff that hurts your business. I only voted to let the President decide.” Such cowardice is now standard operating procedure in Congress.
The current administration, such as it is, complains bitterly about “government overreach,” but it is the courts who have made such intrusion into the everyday affairs of governance possible. There are about a zillion cases in which federal judges have said things like, “This court will not substitute its judgement for that of the (add name of appropriate federal agency here).” The assumption is that federal agencies are experts and their findings should be given great weight. But what has happened as a result is lobbyists have captured the administrative process, writing industry friendly rules and regulations that benefit themselves knowing full well that no court will lift a finger in opposition.
The courts have similarly led to the corporate take over of America. 100 years ago, shareholders had enormous power to challenge the actions of executives and boards of directors in court. But the number of such suits threatened to overwhelm the court system, so the federal judges decided to simply let corporations run amok and do whatever they wanted to do without judicial oversight. That policy of ducking their responsibility led directly to the chief justice of the US Supreme Court declaring in Citizens United that corporations had all the same rights as people. His pronouncement, inserted as almost an aside in that opinion, completely upended the Constitution that he and his fellow conservatives spend so much time swearing they are defending.
All Is Not Lost?
Some good did come out of the suit filed by San Francisco and Oakland. At that now famous tutorial session on March 23, Avi Garbow, lead attorney for Chevron, told the court his company accepts the findings of the Fifth Assessment report of the Intergovernmental Panel on Climate Change. “Chevron’s neither going to overstate nor understate degrees of confidence. Chevron’s simply going to present the conclusions of the IPCC because Chevron thinks that’s the best and the most accurate way of responding to the court’s tutorial request,” Avi Garbow said at the time.
Not all 5 defendants went that far. ExxonMobil, for instance, is continuing its slash and burn defense of its actions. But there is now an admission on the record in open court by one of the world’s largest oil companies that climate change is real and directly related to human activity. Such an admission can now be used against Chevron in other trials pending in other courts.
Actually, All IS Lost
On June 27, Justice Anthony Kennedy announced his retirement from the Supreme Court. Kennedy for years has been the swing vote between the ardent liberals on the court and the staunch conservatives. Alleged president Trump says he will appoint a person to replace Kennedy drawn from a list of candidates drawn up by the Heritage Foundation and the Federalist Society.
Hello? Is anyone paying attention? The Heritage Foundation and the Federalist Society are organizations created and funded by the Koch Brothers. All four of the remaining conservative judges are former members of or had their legal careers significantly supported by the Federalist Society. What Trump is saying is that he is allowing the Koch Brothers to pick the next member of the US Supreme Court.
All of the lawsuits currently pending in state and federal courts will one day end up in front of the US Supreme Court, where a majority of the judges will soon be little more than stooges for the Koch Brothers. These are people who have been taught from birth that corporations can do no wrong, that government regulation is always bad, that states can gerrymander voting districts at will, that voting rights can be restricted if a legislature sees fit to do so, and that a woman’s body may be regulated and controlled by the government.
For his part, the despicable Mitch McConnell, who defied the will of the American people for nearly a year by refusing a vote on President Obama’s nominees for the Supreme Court, has already announced that the confirmation for the newest justice will take place as soon as possible and in any event prior to the 2018 elections in November.
When Obama was in office, McConnell’s rationale for refusing to even hold hearings on the nomination of Merrick Garland was that “the people” must be given a chance to make their voices heard by voting in the 2016 election. Now suddenly, he is singing out of the other side of his mouth and rushing to get the new automaton judge seated before the people have a chance to vote in November when the elections could change the balance of power in the Senate. If there were a Nobel Prize for hypocrisy, McConnell would win hands down.
US Supreme Court As A Tool Of Suppression
Anthony Kennedy served on the US Supreme Court for 30 years. His successor could serve for another 30 years or longer. Several members of the liberal wing of the court are elderly and fighting debilitating diseases. Trump could ultimately have the opportunity to appoint more Supreme Court judges than any president in history, which will give the Koch Brothers control over America long after they too have passed from this earth.
Rather than making America great, a Trump-curated Supreme Court will make white supremacy and corporate power into the law of the land for the better part of this century. For those who can’t be bothered to vote, be aware that your refusal to participate in democracy paves the way for those who seek to impose their will on us all. A conservative-controlled Supreme Court could well doom America to the status of a backwater country, one that is the laughingstock of the world community, and there appears to be nothing any of us can do about it.
Trump is going to appoint a hard right candidate to fill Anthony Kennedy’s seat. The Senate is going to confirm that person after some perfunctory maneuvering. And then America will descend into a modern version of the Dark Ages, putting all thoughts of social justice or climate change action in the rearview mirror for a generation or two. When it awakens from its long winter’s nap, it won’t be great. It will be irrelevant.