Can the Government be Sued for Climate Change? Appeals Court Hears Arguments

PHOENIX – Federal judges are weighing whether the U.S. can be held legally responsible for failing to protect future generations from climate change. That’s at the heart of Juliana v. United States, in which 21 young people from around the country claim they have a constitutional right to be protected from man-made climate change.

In an unusual pretrial appeal, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit convened June 5, 2019, in Portland, Oregon, and grilled lawyers for both sides. The judges have not said when they will rule.

The lawsuit, which was filed in 2015, claims that for more than 50 years, the U.S. has known about carbon dioxide pollution from burning fossil fuels, and that pollution “was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their well-being and survival.”

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Groups that have filed briefs in support of the suit include the American Academy of Pediatrics, the American Thoracic Society, the American Heart Association, the American Lung Association and the League of Women Voters.

The suit calls for several changes, including declaring unconstitutional a section in the Energy Policy Act that allows for “fewer restrictions on certain natural gas imports and exports.” The defendants also want a plan in place to “phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and will depend.”

Julia Olson, executive director of Our Children’s Trust and chief council representing the youth, told the judges the case should be allowed to go forward because the government has deprived the young plaintiffs of their Fifth Amendment rights to “life, personal security and family autonomy.”

Justice Department lawyer Jeffrey Clark argued that the suit should not go to trial because it was a direct attack on the separation of powers and a “direct assault on constitutional design.” The government, he said, contends there is no “fundamental constitutional right to a ‘stable climate system.’”

Judges Mary H. Murguia and Andrew D. Hurwitz of the 9th Circuit and District Judge Josephine L. Staton of the District of Central California presided over Tuesday’s hourlong hearing.

The plaintiffs’ argument

Hurwitz questioned Olson on whether a failure to act by the government was tantamount to a state-created danger.

Olson maintained that although the Fifth Amendment did not allow her clients to “claim for pure inaction,” the government was complicit in climate change by allowing fossil fuels to be extracted from public lands, which she claimed are the source of almost 25% of U.S. emissions.

Hurwitz also challenged Olson on her claim that although “the court does need to say there is a constitutional right at stake” the court “doesn’t need to find it because it is in the Constitution and the Fifth Amendment.”

“You’re arguing for us to break new ground,” Hurwitz said. “You shouldn’t say this is an ordinary suit and all we have to do is follow A, B and C and we get there. You’re asking us to do a lot of new stuff.”

In her closing remarks, Olson compared climate change legislation to the questions of racial and sex discrimination that defined constitutional law in the 20th century.

“When our great grandchildren look back on the 21st century, they will see that government-sanctioned climate change was the constitutional issue of the century,” Olson said.

The Defendant’s Argument

Hurwitz challenged Clark with a hypothetical, asking whether the courts would have no standing in a case in which the federal government declined to act against raiders from Canada cross the border to kill children in the Pacific Northwest.

“If the executive branch decided not to act, the plaintiffs would now have no option but to die?” the judge asked.

Clark warned there would be profound effects on the whole legal system if the suit succeeded.

“You can take the right that they are trying to seek and fashion a whole bunch of new rights,” Clark said, providing his own hypothetical wherein people dying of heart disease could sue the government for not encouraging exercise enough.

One Arizonan’s Push for Justice

One of the young plaintiffs is Jaime Lynn Butler, 18, the daughter of state Sen. Jamescita Peshlakai. According to Butler’s profile on Our Children’s Trust’s website, she has been working to protect the Earth since she was 4.

Butler grew up on the Navajo Reservation and “sees firsthand the cultural and spiritual impacts of climate change, as participating in sacred Navajo ceremonies on the reservation is an important part of Jaime’s life, and climate impacts are starting to harm the ability for Jamie and her tribe to participate in their traditional ceremonies,” according to the site.

“My favorite thing in life that all kids should have is a creek, or a lake, and a forest and lots of pets,” Butler said in a video by Our Children’s Trust. “That’s what I hope every kid could have.”

Butler began her environmental activism in elementary school, first writing a letter to then-President Barack Obama about the Arctic Refuge in 2011, according to the video. Butler kept writing and, after six letters, received a reply from him urging her to stay involved with her efforts.

“I hope that the Earth is the same way it is now, instead of being hotter,” she said at the close of the video. “That’s what I hope for the kids when I am older.”

The Legal Path Ahead

Kirsten Engel, a law professor at the James E. Rogers College of Law at the University of Arizona, described the plaintiffs’ argument as a “very broad constitutional argument” that climate change is interfering with their liberty.

The young people also “have an argument based on something called the public trust doctrine,” she said, “which is basically that the federal government, as well as the states, have sovereign rights over some of our natural resources that are open to the public.”

The plaintiffs contend the government has “essentially taken these away and harmed them,” Engel said.

The federal government, she said, is “really just trying to get this lawsuit out of the courts,” by challenging the plaintiffs’ constitutional requirements to demonstrate “the requisite degree of immediate harm.”

“It’s usually pretty an exacting test, ” Engel added. “You have to show that you are being currently, immediately and concretely harmed by the defendant, and that the defendant has basically the power to remediate your harm.”

Juliana v. United States is part of a long history of environmental law in the courts. Before the Clean Air and Clean Water acts, Engel said, fossil-fuel companies, automakers and other polluters were sued for “creating a nuisance.”

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That changed, she said, with the passage of the Clean Air Act in 1970 and the Clean Water Act in 1972, which made Congress and the Environmental Protection Agency responsible for protecting the environment and essentially preempted action on polluters within the courts, whether the environment was protected or not.

In other “enormous environmental threats,” such as the depletion of the ozone layer, Engel said, the government did act by amending the Clean Air Act to phase out chlorofluorocarbons. In the case of climate change, the scale is much larger.

“You could argue it’s an unprecedented problem,” Engel said. “And it’s unprecedented that our political branches are not acting on it.”

If the lawsuit moves forward, Engel, who is also a Democratic state representative from Tucson, said the youth will have their day in court, which will allow them to present evidence.

“I have to say, I’d just love to see that,” she said. “I think we could learn a lot from that, as we hear from the experts that they’re bringing in.”

On the other hand, if the court decides to “shut this down entirely,” Engel predicts “less sweeping efforts in the courts” from environmental activists, with more of a focus on challenging Obama-era environmental protections rolled back by the Trump administration.

“And probably a lot more action from state and local governments,” she added.

Colorado is Entering a New Environmental Era… Maybe

DENVER – More than a dozen new energy and environment bills are headed to Gov. Jared Polis for a signature. They cover an array of issues from the oversight of electrical generating companies to how companies have to factor climate change into their decision making to the nitty gritty of how oil and gas drilling is governed in the state.

“Given the priority we saw voters make of energy and the environment this past fall they were a really an important part of this past legislative session,” said Kelly Nordini, executive director of Conservation Colorado, an environmental nonprofit.

While momentous, the actual impacts of some policies are yet to be determined. At least two — the oil rule and greenhouse gas reduction goals — will see many details decided in rulemaking by state agencies.

Agencies will release basic ideas on their plans for new regulations. Then they’ll release a draft rule for the public to weigh in on. Some environmental groups plan to put pressure on the state to hold evening sessions, so the public has a better chance to share their concerns.

Click for Interactive Series

The oil and gas law, for example, will require at least a half-dozen rules to be written or rewritten. That means it could take years — not months — to completely spell out details of measures that could have the biggest impact on curbing climate change.

“So the outcome of this session we won’t know fully for multiple years to come,” said Scott Prestidge, communications director for the Colorado Oil and Gas Association.

Here’s a list of the key energy and environment bills:

Just Transition From Coal-based Electrical Energy Economy. Creates first-of-its-kind Just Transition office, and makes grants available to coal transition workers.

Electric Motor Vehicles Public Utility Services. Allows electric utilities to apply to the Public Utilities Commission to build electric vehicle charging stations.

Protect Public Welfare Oil and Gas Operations. 29-page bill makes health and safety a priority for regulators and launches more than a half dozen rulemakings on things like flowlines, adopting additional methane controls.

Collect Long-Term Climate Change Data. Directs state health officials to collect greenhouse gas emission data annually, and make data available to local governments.

Community Solar Gardens Modernization Act. Allows community solar gardens to expand from 2 to 5 megawatts.

Modify Innovative Motor Vehicle Income Tax Credits. Current law phases out EV tax credits at the end of 2021, new law extends tax credits through 2025.

Electric Vehicle Grant Fund. Allows for more flexibility in how EV Grant Fund administered by the Colorado Energy Office is used.

New Appliance Energy and Water Efficiency Standards. Appliances and plumbing fixtures sold in Colorado will have to meet new energy efficiency and water efficiency standards.

Building Energy Codes. Local governments required to adopt one of three international energy conservation codes when they update building codes.

Climate Action Plan To Reduce Pollution. Directs Colorado’s Air Quality Control Commission to reduce greenhouse gas emissions 26 percent by 2025, 50 percent by 2030 and 90 percent by 2050.

Housing Authority Properties. Allows public housing authorities to participate in state PACE program, a way to finance clean energy projects.

Front Range Waste Diversion Program. Creates Front Range landfill fee that goes to help communities meet waste diversion goals.

Sunset Public Utilities Commission. 81-page bill gives new charter for state electric utility regulators, including a move in 2020 to calculate the social cost of carbon dioxide emissions in certain utility proceedings.

This story was first published by CPR News on May 13, 2019. You can listen to a radio debrief with environmental reporter Grace Hood here.

Critics Blast DHS Environmental Waivers that Clear Way for Border Wall

WASHINGTON – The Department of Homeland Security confirmed Wednesday that it will waive dozens of environmental, health and other laws to clear the way for construction on about 58 miles of border barriers, including 12 miles of fencing near Yuma.

The move was quickly attacked by lawmakers and environmental activists, who accused the administration of endangering human and wildlife safety to satisfy the “nativist rhetoric” behind President Donald Trump’s “vanity wall.”

“The nativist rhetoric coming out of D.C., coming from the Trump administration, is so detached from reality,” said Laiken Jordahl with the Center for Biological Diversity. “The public lands and the natural beauty that we have along the border are truly is a national treasure … that really bring a lot of inspiration and joy to people who visit these areas.”

But those areas are also where there is “an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project area,” DHS said in Federal Register notices posted Wednesday.

Those notices said Acting Secretary Kevin K. McAleenan would invoke the department’s authority to waive more than 30 regulations – ranging from the Clean Air Act and Safe Drinking Water Act to the Eagle Protection Act and Endangered Species Act – to pave the way for border wall projects in Arizona and New Mexico.

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“In order to ensure the expeditious construction of the barriers and roads in the project area, I have determined that it is necessary that I exercise the authority that is vested in me,” McAleenan said in the notice.

The notices are for 8 miles of wall near Yuma, about 46 near the Columbus Port of Entry in New Mexico, and another 4.1 miles near San Luis. The first two projects would be built in part with Defense Department funds that target drug trafficking.

The DHS notice said that there were more than 57,000 immigrants apprehended last year in the Yuma and El Paso sectors of the border where the proposed construction would take place. It also said officers seized more than 23,100 pounds of marijuana, 1,900 pounds of methamphetamine, 420 pounds of cocaine and 142 pounds of heroin there last year.

The projects call for replacing existing vehicle and pedestrian barriers with new 18- to 30-foot-high sections of border wall that “will further Border Patrol’s ability to deter and prevent illegal crossings,” the notices said.

Waiving the regulations will speed the project, but at a cost to the border region’s rich biodiversity, something people don’t always comprehend, said Jordahl.

“So often the borderlands are portrayed as this barren desert when in reality the lands are teeming with life,” he said, adding that “93 species would be threatened by the border wall.”

Wildlife is not the only thing that would be harmed. Rep. Raul Grijalva, D-Tucson, said the decision to waive environmental protections would also harm people living on or near the border.

“The Trump Administration consistently stoops to new lows when it comes to building the President’s vanity wall – even if it endangers the public health of our communities and the environment we call home,” Grijalva said in a statement released by his office Wednesday.

Jordahl, who lives in Tucson, said the excavation for the wall would damage wildlife while the wall itself could disrupt habitats and ecosystems, something someone living far from border communities cannot appreciate.

Grijalva echoed that sentiment, accusing Trump of playing political games instead of thinking about locals.

“President Trump is sending a clear message to border residents: his political agenda is more important than their homes, health, and livelihoods,” he said.

-Cronkite News video by Haddi Meyer

Why does Raúl Grijalva matter for public lands and the environment?

COLORADO SPRINGS, Colo. – The Trump administration and Congress have systematically dismantled many Obama-era environmental regulations. Now, Democrats finally have control of the House and the committee with the most power over public lands – the House Committee on Natural Resources. Rep. Raúl Grijalva of Arizona will be the new chairman, and he couldn’t be more different from his predecessor.

For one, Grijalva has been one of Interior Secretary Ryan Zinke’s most vocal critics. Over the past few years, he has questioned Zinke about his spending on office furniture, his approach to shrinking Bears Ears National Monument, and about whether he suppressed scientific findings he didn’t agree with.

Zinke is the subject of at least three ethics investigations. As chair of the House Natural Resource Committee, Grijalva now has the power to push for more transparency in those inquiries. But Zinke is just part of the problem, the Tucson Democrat said.

“I think that if he were to resign or be sent away,” Grijalva said, “the legacy of kind of turning over Interior to the fossil fuel industry and the extraction industry is not going to go away. So there’s still things to look at.”

He was one of several members of Congress who boycotted President Trump’s inauguration in 2017. But he also made headlines when he worked closely with the current chair of the House Committee on Natural Resources, Rob Bishop, R-Utah, with Bishop, the current chair of the committee, about the Land and Water Conservation Fund.

Now that he will have the formal power of leading a committee, Grijalva promises to look at environmental issues.

“What I think you can expect is a return to giving prominence to the conservation side that hasn’t been there in the last two years,” he said. “And any legislation that continues to rip away at our bedrock environmental laws, we’re not going to waste time on it.”

Grijalva said he also plans to focus on issues in Indian country, on protecting wildlife and the Endangered Species Act, preserving public lands, and the elephant in the room – climate change.

“Climate change has been scrubbed from the discussion,” Grijalva said. “Peer review has been severely handicapped. Panels of scientists have been eliminated and you don’t talk about climate change, you don’t talk about science anymore when you’re making decisions.”

He wants to change that. But Kathleen Sgamma, president of the industry group Western Energy Alliance, is not thrilled about a Democrat, specifically a politically progressive one such as Grijalva, taking the helm and, as she sees it, stirring things up.

She called Grijalva “extremely hostile to oil and natural gas development, economic development – ranching, mining, timber – any kind of development on federal lands.”

She said she’s not worried about losing too much ground, though – mainly because of partisan gridlock in Congress.

“It’s unfortunate that Congress cannot come together and find some compromises on natural resource issues,” she said, “but that’s just the nature of Washington, D.C.”

Others, though, have more faith in Grijalva’s ability to move things forward. Kieran Suckling, director of the environmental nonprofit Center for Biological Diversity in Tucson, is among them.

He argued Grijalva has “been able to broker deals Republicans both in the House and the Senate to protect the environment.”

Suckling is not a fan, however, of the current chair: “Bishop is really one of the most anti-environmental congressmen in Congress.”

Suckling sees Grijalva as an ally, and for good reason. Grijalva is on the advisory board of the Center for Biological Diversity’s Climate Law Institute and has been vocal about prioritizing the environment.

For his part, Bishop issued a written statement in response to the transition.

“We look to continue being active next Congress as we move into doubling down on President Trump’s top notch environment and energy policies,” he wrote.

Whether he’ll be able to do that with Grijalva at the helm is an open question, but Grijalva is hopeful there will be bipartisanship on the committee. Still, regarding common ground with the former chair, Grijalva was modestly optimistic.

“We both like baseball,” he ventured. “I don’t know if we sometimes see the sky the same color, politically speaking, probably rarely. But you know that’s part of what we need in this Congress is a level of civility and respect for one another’s opinions. He’s shown that to me and I hope I’ve shown that to him.”

Grijalva will take over the chairmanship in January 2019.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, Yellowstone Public Radio in Montana, KUER in Salt Lake City and KRCC and KUNC in Colorado.

Arizona PBS/Cronkite News’ Alexis Egeland and Imani Stevens contributed reporting to this piece.