Twelve years ago, the U.S. Supreme Court ruled in Massachusetts v. EPAthat greenhouse gases are air pollutants covered by the Clean Air Act. The decision in effect gave the Environmental Protection Agency massive additional regulatory authority. This year, another landmark climate case appears headed for the high court: Juliana v. United States. This time, the stakes are even higher.
The Ninth U.S. Circuit Court of Appeals on Tuesday will hear arguments in Portland from both sides. The hearing was preceded by a wave of well-funded protestsacross the United States in support of the plaintiffs, who are a group of 21 children and teenagers who were recruited in 2015 from places around the country deemed particularly vulnerable to climate change.
While environmental lawsuits have been around for 50 years, “climate rights” and climate liability lawsuits blaze new legal territory. As “60 Minutes” explained in a favorable story in March, the young plaintiffs allege the U.S. government’s use of fossil fuels is “causing climate change, endangering their future and violating their constitutional rights to life, liberty, and property.”
The prospects for this case to reach the Supreme Court and provoke a strong ruling in favor of the plaintiffs cannot be ruled out. Over the past few decades, the fossil fuel industry has embraced the climate change activists. The industry has determined that challenging the basic premises of climate change activists is no longer good for business.
Rather than continue to fund unbiased scientific inquiry, the fossil fuel industry recognizes that if it is harder to extract oil and gas, the price of oil and gas will rise, increasing their profits. They also recognize—unlike every climate activist on earth, evidently—that it is impossible to pursue economic development without fossil fuels. Therefore, their industry will continue to thrive no matter what climate activists accomplish through litigation or legislation.
Government Has a Tough Case to Make
A similar pattern of appeasement describes the federal government’s approach to climate activism over the past 30 years. Across Republican and Democratic administrations, the federal bureaucracy, usually staffed by individuals who were themselves climate activists, generated mountains of correspondence that will be used to allege the government knew that fossil fuels were causing climate change and did nothing to stop it.
This evidence has left the defendant, the federal government, with a much tougher case. The plaintiff’s attorneys have accumulated documents going back decades that they will offer as proof of liability.
Whatever the fossil fuel industry’s motivations were—protecting their public image, taking the path of least resistance, short-term thinking, or cynical, profit-oriented stratagems—they now face consequences beyond anything they may have imagined. The plaintiffs in Juliana want the court to compel the federal government to develop a plan to reduce atmospheric CO2 concentrations to 350 parts per million or less by 2100. Global CO2 concentrations are currently around 400 PPM.
This is an impossible goal. Not difficult. Not tough. Impossible.
Critical Questions
What will decide the case in the Supreme Court, however, is not the feasibility of this remedy. Rather, the case will hinge on whether the U.S. Constitution guarantees the right to a healthy planet; do CO2 emissions from burning fossil fuel cause an unhealthy planet; and if so, did the U.S. government know this and do nothing?
The case could turn on any one of those questions, but the second one—do CO2 emissions caused by burning fossil fuel cause an unhealthy planet—is the most critical to future policy.
The “endangerment finding” in Massachusetts v. EPA was a missed opportunity for climate skeptics to have an honest debate on the entire scientific basis of climate activism. The failure of climate skeptics to successfully argue their position in Massachusettshas created a powerful precedent that favors the plaintiffs in Juliana.
Nevertheless, if and whenJuliana reaches the high court, it would be a mistake for the federal government’s attorneys to focus primarily on the question of whether or not U.S. citizens have a constitutional right to a healthy planet. Instead, they could use the opportunity to challenge every scientific premise of the climate activist lobby.
For example:
What proof is there that anthropogenic CO2 is the primary contributor to global warming? What about changes in solar cycles, other astronomical variables, the multi-decadal oscillations of ocean currents, the dubious role of water vapor as a positive feedback mechanism, the improbability of positive climate feedback in general, the uncertain role (and diversity) of aerosols, the poorly understood impact of land use changes, the failure of the ice caps to melt on schedule, the failure of climate models to account for an actual cooling of the troposphere, the credibility of climate models in general, or the fact that just the annual fluctuations in natural sources of CO2 emissions eclipse estimated human CO2 emissions by an order of magnitude?
What proof is there that global warming is occurring at an alarming rate, that it won’t stabilize, or that it isn’t actually causing more good than harm in the world by stimulating the expansion of the world’s forests, increasing agricultural productivity, increasing global precipitation, and reducing deaths from freezing?
What if species loss is overstated, happening for other reasons, or countered by adaptation? What if anthropogenic CO2 is the reason the Anthropocene era hasn’t already been catastrophically obliterated by what is now the past-due next ice age?
What if the environmental consequences of a dramatic reduction in CO2 emissions actually would be worse than alleged global warming? What are the cumulative environmental impacts of carbon-neutral solutions such as the heat island effect of hundreds of thousands of square miles of photovoltaic panels, or millions of square miles of biofuel plantations? What are the wildlife impacts of these solutions, along with others such as millions of large wind turbines?
What about the environmental impact of mining for millions of tons of rare earth minerals and other extractive nonrenewable resources in order to construct these massive energy projects? What about the environmental impact of recycling and reprocessing these renewables assets which have useful lives of only 25-50 years?
These are some of the scientific arguments that the government should bring to bear when Juliana v. United States reaches the U.S. Supreme Court. But decades of cowardice and opportunism by members of industry and government who knew better make it harder than ever to make those arguments.
Appeasement and Unwitting Nihilism
The choice was made a long time ago by most of these special interests to appease and accommodate the climate activists. As a result, the arguments they ought to be making have been banished and toxified for so long they have become heresy in the eyes of virtually the entire mainstream and online media along with a generation of America’s youth.
Which brings us back to the absolute impossibility of implementing the remedy that the plaintiffs in Juliana seek. What a ruling in favor of the plaintiffs will do, however, is create powerful momentum for a “Green New Deal” of far greater scope than whatever compromise package would otherwise eventually find its way for a signature from a friendly White House in 2021 (they hope). This, in turn, would be devastating to America’s prosperity, freedom, and ability to compete economically and militarily in the world.
The saddest part of the entire climate activist movement is its unwitting nihilism. Fossil fuel development is the only way that people in the world will be quickly lifted out of poverty. Fossil fuel provides 85 percent of global energy production, and for every person on earth, on average, to consume half as much energy per capita as Americans do, global energy production has to double. This cannot possibly be achieved without ongoing development of fossil fuel, along with whatever renewable technologies we can muster.
America should be encouraging the development of clean fossil fuel, at the same time as it pours research into leapfrog energy technologies: safe nuclear fission, nuclear fusion, the industrial development of outer space including satellite solar power stations.
If environmentalists really believe what they say, they would support such endeavors—along with technologies to lower the human footprint: aquaculture, fish farming, high-rise agriculture, urban agriculture, smart agriculture, lab-grown meat, and innovations certain to come that we haven’t even thought of yet.
Cheap energy is the primary enabler of prosperity, literacy, urbanization, female emancipation, reduced infant mortality, and voluntary population stabilization. Without it, throughout the teeming tropics, women would continue to gather wood for the cooking fires, men would hunt bush meat, and forests and wildlife would continue to disappear.
These privileged American children and their manipulative activist parents may pat themselves on the back as they drive their Priuses to the courthouse. But their utopian vision delivers a dystopian fate to the less fortunate on the other side of this world.
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