Sunday, November 27, 2016

Two steps further than I expected, three more to go

As climate chaos marches gleefully towards January 20th, Slate calls for a potential savior, a lawsuit by children saying the federal government has an obligation to protect them against the worst effects from climate. The lawsuit does not rely on the usual tactic of pushing a new interpretation of major environmental legislation, but rather the Constitutional principle of due process lawsuits and the even more exotic public trust concept of environmental resources being held by the government in trust for future generations. 

I studied both principles in law school nearly 20 years ago, and have basically never used them in my environmental career. After some initial excitement about public trust, I eventually agreed with my professor that the concept had played a moderately beneficial role in some states, had become incorporated in the legislative and administrative process, and was unlikely to do more.

But that was 20 years ago. This new litigation has survived initial magistrate review and the initial judicial analysis (magistrates are administratively appointed judges without all the authority of traditional judges). The judicial analysis at this stage looks to see whether there's any way that plaintiffs can possibly win, without having to examine disputes about the evidence. The judge said, yes, maybe, I have to look at the evidence.

I read the actual opinion (website down right now, will look later to see if it's fixed), and there are many barriers for plaintiffs, not least of which is the argument that this is a political question not subject to judicial resolution. This judge has to carefully examine the evidence and rule in favor of plaintiff children, her decision has to be supported by the Ninth Circuit appellate court, and (hardest of all) that decision supported by a Trump-appointed Supreme Court. And this is a case that the Supreme Court would take.

I'm not actually sure what will happen next. There may be an attempt for immediate, interlocutory appeal to cut the case short, or maybe the judge might examine the evidence around certain questions like whether the government has any legally-enforceable obligations before considering what the remedy would be, allowing that decision to go to appeal.

Still, this got further than I anticipated, and if nothing else can turn up the heat on governmental inaction.


Fernando Leanme said...

You have a serious weakness: the EPA's justification for the "Clean Power Plan" and other Obamite moves is based on climate models which yield results slightly worse than the RCP8.5 ensemble. But I can shoot holes in rcp8.5 with my eyes closed. This means the EPA justification is based on bogus science (I don't even have to argue over climate sensitivity or model applicability).

I do question if republicans working within the trump administration will have the intelligence to use this point. Evidently they will control NOAA and the EPA after January. It would be fairly simple to create a different ensemble with much more subdued emissions. This "new RCP" would take into account the fact that emissions are barely growing, and it will yield much lower CO2 concentrations.

This of course throws two issues on the table: 1. It's fairly easy to see that projections are wildly inaccurate. and 2. The economic harm estimated by the EPA sure looks like baloney. This in turn makes the decision a clearly political one, rather than anything based on real science.

If you do want to argue a case, you would have to do it with this in mind. Not only is your strategy a gross attempt to legislate using the courts, it is based on a very weak foundation. I think you would have to use CMIP6 (not CMIP5), make sure it has five RCP with the center one being a closer match of the current emissions trend, and do a serious cost, economic and political simulation. That should take about three years. And after that you can use it in an election. Or maybe not. You may find that energy security issues and other matters will make Trump support a modified form of the Obamite policies. In which case you have no case at all.

Unknown said...

There's a peculiar point of principle here which may also play into the argument. So-called 'Pro-life' argues forcefully for the superior rights of the as-yet unborn, at the cost of the rights of the individual (woman). Public Trust can arguably be seen as protecting a comparable right (without conceding the validity of the first, which is ill-founded for other reasons).
Intergenerational equity (see, for example, Barry (1997)) is a longstanding problem of ethics. What it boils down to is what responsibility, if any, those of us here and now are willing to accept for those yet to be.

Jan Galkowski said...

I have a copy of the Aiken order in my Amazon space.

Regarding the question being a political one, Aiken spends a good deal of time on this, pursuing six so-called ``Baker criteria'' and checking them against the present suit. Moreover, the Order says

However, the scope of the political question doctrine should not be overstated. As
Alexis de Tocqueville observed, "[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question." 1 Alexis de Tocqueville, Democracy in America 440 (Liberty Fund 2012).

Later, while pursuing the first and most important of the Baker criteria, the Order notes:

Climate change, energy policy, and environmental regulation are certainly "political" in the sense that they have "motivated partisan and sectional debate during important portions of our
history." US. Dep't of Commerce v. Montana, 503 U.S. 442, 458 (1992). But a case does not
present a political question merely because it "raises an issue of great importance to the political branches." Id. Instead, dismissal on political question grounds is appropriate only if one of the Baker considerations is "inextricable" from the case. Baker, 369 U.S. at 217. As a result, federal courts regularly adjudicate claims that arise in connection with politically charged issues.

Now, I have no formal training in law, so the significance or insignificance of this may be lost on me. And I know what matters is when this goes to trial, and Aiken punted on a couple of points relating to that, even if the fact that this was a preliminary hearing and not trial allowed them to do so.

William M. Connolley said...

The order is (found via

Ed Darrell said...

Not sure what Fernando Leanme means in stating EPA's Clean Power Plan is based on a model. It's clearly an EPA rulemaking based on the 111 (d) rulemaking authority, which gives EPA authority and a duty to regulate pollution that causes damage or injury to humans.

Does EPA even refer to a model anywhere in the rule?

I haven't followed this closely, but it seems consistent with other clean air rules promulgated through the years, to which I've had to pay careful attention.

Fernando Leanme said...

Ed, the rule making authority does require the rule be justified. In other words, USA law doesn't allow the bureaucracy to issue orders without some basis. As it turns out, the EPA did have models run, and the results were used to justify the supposed enormous harm caused by rising CO2 concentrations.

I saw the EPA model inputs and outputs, and my opinion is that the EPA used something slightly more aggressive than RCP8.5. This puts the whole effort into lala land as far as I'm concerned. The opposition to the EPA rules comes from the "drill baby drill" crowd, cornucopians who think fossil fuel resources will last forever. Therefore they never gave much thought to digging into the pathways used by the EPA models.

I happen to see both sides. We have a problem with rising CO2 concentrations, and a problem with energy security, because we are depleting fossil fuels and we don't have viable economic replacements. I thnk the global warming harm is much lower than the official blarney issued by the obamites, but when coupled to the energy security and depleting resource issue, it sure makes sense to be very energy efficient and begin a transition away from fossil fuels.

I don't even know if a guy like trump will last in the presidency six months. But if he does and he isn't as crazy as he sounds maybe he will manage to understand there's a middle of the road which makes a lot of sense. Replacing the current EPA strategy (which really stinks) requires a sound basis. And this means they ought to rerun those models. Hell, everybody really needs to get off the political horse and get as sensible as possible.

Hank Roberts said...

Another California water blogger:

Hank Roberts said...

P.S., worthwhile reading:


... ... 1970 article,The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970), ranks as one of the ten most influential law review publications of all time, and the single most important one in natural resources law. Joe's article revived the 1892 case of Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892) and applied it at the dawn of the age of environmentalism, to protected the public commons (lakes, rivers, submerged lands)from alienation by the sovereign to private interests.

The entire body of subsequent American (and some foreign) public trust law emanates from Sax' essay, and singularly influenced the California Supreme Court's 1983 National Audubon decision (National Audubon Society v. Superior Court(1983) 334 Cal.3d 419) that Los Angeles' 1940 water rights to divert water away from Mono Lake deserved and required reconsideration and reallocation to protect the lake's ecological qualities --the most important 20th century water law decision from that leadership court.

I arrived too early to study Joe'sarticle in law school; it came to me in an August 1976 visit to my fledging Sacramento law office by two UC Davis grad students, a Berkeley undergrad dropout, and, incidentally, David Brower. The grad students had spent the summer at Mono Lake documenting its decline, but the undergrad brought a copy of the Michigan Law Review.

That was the winning combination. Ultimately Morrison and Foerster agreed to represent the Mono Lake Committee pro bono, and Davis Law Professor Hap Dunning sponsored a 1980 public trust symposium at which Hap, Washington's Ralph Johnson, and Deputy AG Jan Stevens adapted Joe's public trust doctrine to the law of California's waters. The Court's opinion records this legacy....

----read the whole thing-----

Unknown said...

Another thought: International Maritime Laws establish very forceful codes on principles which are considered very deep, in legal terms: the High Seas are 'belonging to all humanity' and piracy is 'humanes hostis generis' (effectively, a type of crime against all people). The status of such rules is at least Jus Cogens, if not stronger.

Insofar as the atmosphere is like the High Seas (belonging to all), is it not possible to propose that polluters, including CO2 polluters, are acting "humanes hostis generis"?

It would make a more interesting case than the public trust argument, I suspect.

Unknown said...

Sorry, that should read "hostis humani generis", my bad...


Fergus, what happened to the 'totius' ?

Unknown said...

Russell, it's implied in the declension of the noun...


Though I have little Latin and less Greek ,what Cicero said was:

“Nam pirata non est ex perduellium numero definitus, sed communis hostis omnium"
De Officiis, Book III, Ch. XXIX, 107.

Unknown said...

Yes, but Wikipedius said:

International waters (also called "the high seas") have their own customs and usage, rules and articles, and laws. Unlike the case with land, above the high-tide mark, where title, ownership, and sovereignty are created by law based around use and possession, no nation may claim as its territory the high seas, for continuous use and possession of them is impossible; as such, no nation may thus forbid trespass through the high seas. The high seas, since they cannot be owned by anyone, are held to belong to all humanity, and every nation is held to have a separate and equal right to have its ships navigate over them; this is the concept of mare liberum, or the freedom of the seas. As the sea is the common property of all, the perils of the sea and of navigation are shared by all mariners, and all nations. A law of amity and reciprocity holds among the seafaring powers, especially in regard to matters related to the protection of life and to a lesser extent, property; for instance, the law stipulates the obligation of every mariner to assist those who are shipwrecked, and the obligation of every harbormaster to provide safe harbor to any vessel in need during a storm, regardless of the flag it flies.

Perhaps the oldest of the laws of the sea is the prohibition of piracy, as the peril of being set upon by pirates, who are not motivated by national allegiance, is shared by the vessels and mariners of all nations, and thus represents a crime upon all nations. Since the time of the Ancient Romans, pirates have been held to be individuals waging private warfare, a private campaign of sack and pillage, against not only their victims, but against all nations, and thus, pirates hold the peculiar status of being regarded as "hostis humani generis", the enemies of humanity. Since piracy anywhere is a peril to every mariner and ship everywhere, it is held to be the universal right and the universal duty of all nations, regardless of whether their ships have been beset by the particular band of pirates in question, to capture, try by a regularly constituted court-martial or admiralty court (in extreme circumstances, by means of a drumhead court-martial convened by the officers of the capturing ship), and, if found guilty, to execute the pirate via means of hanging from the yard-arm of the capturing ship, an authoritative Custom of the Sea.[1]

Tom said...

People here can sometimes have a good idea--traditional sanctions against piracy! Neat!!!

And then you mess it up. Don't use it in a vain attempt to constrain emissions. Use it to go after the fishing fleets that are denuding the ocean. Then, maybe, if it works and precedents are established...

Anonymous said...

Are those fishing fleets powered by wind and sail, Tom?

Or do you think they just row their boats around out there?

Unknown said...

'The sea is the common property of all'. For 'sea' read 'atmosphere'.
Alternatively, try to claim, by Law or common sense, that the atmosphere is NOT the common property of all.
Add to this the significant detail that the atmosphere is a necessity, not a preference.