The US Courts at an Impasse

In January 2016, 4RG commented on a lawsuit initiated by the Children’s Trusts (The Trust) to protect the rights of children against the future impacts of climate change.

The Trust submitted two reasons why the Federal court should issue an order against the Government of the United States.

  1. The Government had over many years supported the fossil fuel industry, thereby increasing carbon emissions even though the risks of climate change and ocean acidification had been identified and were well recognized. The Trust claimed that the Government’s support was a violation of the plaintiffs’ legal rights.
  2. That the court should protect constitutional rights by ordering the Federal Government to significantly reduce CO2 emissions through implementation of a science-based climate recovery plan.

The first judge hearing the case ordered the State of Oregon to consider the available climate science in determining the means to regulate emissions. But the Court was not prepared to direct the State to draft rules as long as the State was developing policy to govern GHG emissions.

On a subsequent hearing, U.S. District Judge Ann Aiken concluded:

“Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and open society.”

The Federal Government continued to dispute the legal foundation of the claim. (See the many court rulings summarized in this synopsis.)

In a subsequent decision,  a three-judge panel of the Ninth Circuit Federal Court agreed on the gravity of the plaintiff’s evidence, and that accordingly that there had been a violation the plaintiff’s constitutional right

But, two judges decided that the only remedy lay with a request of the executive and legislative branches of the US Federal Government.  In effect an appeal to President Donald Trump!! – what irony!

The third judge was categorical, confirming claimant’s constitutional climate rights and adding:

“Our nation is crumbling – at our Government’s own hand into a wasteland.!!’”

The US Courts are facing an extraordinary problem of extreme complexity. Rules regulating GHG emissions will be extremely detailed. Whatever form a judgement takes, it is likely to be very unpopular with many citizens and will probably require nearly endless supervision by the courts!

Our Prediction:

The US Supreme Court would be willing to confirm that supporting fossil fuels was an infringement of the constitutional rights of present and future generations.  But it will not order the Government of the United States to pass specific laws to reduce GHG emissions.  Supervising Government compliance with this order would be just too complicated.

Featured Image By Joe Ravi, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=16959908

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