When Winning in Court Won’t Save the Environment: Looking for a Plan “C” (Part 1)

Stronberg, Joel | May 29, 2018 | Leave a Comment

Illustration by Albert Dorne

Q. What if a government refused to comply with a court order directing it to put into place a climate recovery plan that would reduce emissions sufficiently to stay below the 1.5 degree Celsius?

I have been writing a lot lately about the rising number and variety of environmental lawsuits being filed in state and federal courts. The hundreds of active climate-related cases exhibit a wide range of purpose. Some are asking a judge to overturn EPA Administrator Scott Pruitt’s summary suspension of an existing environmental regulation without the due process of law. In other cases, a criminal defendant is attempting to justify shutting down an oil pipeline as necessary to avoid a greater harm being done to the community. State and local governments have even begun asking the courts to hold oil companies financially accountable for the damage they do to their communities by emission of greenhouse gases (GHGs) like carbon dioxide.

Recourse to the courts is a predictable response to the failure of government—especially the federal government—to construct and maintain a strong and stable bulwark against the increasing threats of climate change. Courts in the US are not alone in seeing an uptick in legal actions.

Judicial bodies around the world are being asked to elevate environmental sustainability to a fundamental human right and to order their governments to be more aggressive environmental protectors of nature and society.

In the US, the election of Donald Trump as president and Republican congressional majorities in 2016 has made crystal clear the vulnerability of federal climate policies and programs to shifting political winds. Although hardly a secret, the partisan nature of the global warming debate has never been as much in evidence as it is today.

The 115th Congress began rolling back Obama era environmental protections even before Donald John was sworn into office. From his first days in the Oval Office (#djtintheoffaloffice), Trump has been:

Pushing fossil fuels to market;

Appointing climate deniers to pivotal positions within his administration;

Issuing a series of executive memoranda and orders directing federal agencies to revise substantially or rescind any previous presidential order meant to protect the environment; and

Erasing from agency websites and government reports any reference to anthropogenic climate change.

Legal actions questioning the diligence of governments and the culpability of fossil energy companies were being filed long before Trump came to town. Juliana v U.S.a case in which the plaintiffs are claiming a constitutional right to a habitable environment, was first filed against the Obama administration.

Trump’s election and the Republican’s capture of both the House and Senate, however, has ushered in an open hunting season on federal climate-related policies and programs. Any attempt to have legislation for the protection of the environment introduced into the current Congress is dead on arrival—as is any request of the White House.

Ever since the election of Trump as president and Republican majorities in the House and Senate, climate defenders are whistling past the White House and Congress.

The lack of a realistic political option (Plan A) has naturally caused climate defenders to pursue their objectives in court (Plan B). In the grander scheme of things, however, the legal option is less than optimal. As will be explained further on, Plan B’s inherent weaknesses suggest the need of a Plan C.

There are well-established limitations placed on courts of law. Cases can take five or more years to wend their way through the judicial system. Plaintiffs must meet certain eligibility requirements, limiting who may approach the bench. A court may lack jurisdictional authority to hear a case or it is determined that there is nothing a court could reasonably order that would redress the harm that had been done to the plaintiff. Still, lawsuits are an important adjunct to political action.

When reviewing climate-related lawsuits, I ordinarily focus on a series of first-order legal questions. Do the plaintiffs have standing? What do the applicable laws say? Can the plaintiffs correctly claim to have been personally harmed by the defendant’s actions? How have the legal issues previously been debated and decided by other courts? Is there an established equity or common law argument to be applied? What have the judges or justices revealed about their thinking on the matter?

Reading through several of the more recent cases, however, I find myself thinking not about whether the plaintiffs had the law on their side but what would happen if the plaintiffs won? The cases I was focusing on were those in which a decision for the plaintiff would require an order to the government defendant to develop and deploy a far-reaching regulatory scheme; one that would drastically reduce GHG emissions. A body of regulations that would be larger even than Obama’s Clean Power Plan (CPP).

The crop of recent cases that could require a court to order such encompassing environmental schemes include the Juliana case and its state court spin-offs like Sinnok v. Alaska (Sinnok) and the just filed Delaney Reynolds, et al v The State of Florida; Rick Scott in his capacity as Governor of the State of Florida, et al (Reynolds).

The exact nature of the remedy being asked for by plaintiffs is neither an idle nor hypothetical concern. The issue goes to what a court can and cannot order a defendant to do. In the case of the governments as defendants, it is also about what it is reasonably able to do.

An order of the court to regulate greenhouse gas emissions is consistent with legal precedent and within a government’s authority to regulate. The court in the Massachusetts case that resulted in the regulation of auto emissions and led to the CPP told the federal government that it was obligated to regulate tailpipe emissions, if it determined GHGs harmful to human health.

There is, however, something different about the JulianaSinnok and Reynolds cases compared to the Massachusetts case and others like it. The difference is in the scope of the requested remedy. These cases are quite specific in what they are asking their courts to do [i].

In the Sinnok complaint the court is being asked to:

9. Order Defendants to prepare a complete and accurate accounting of Alaska’s GHG emissions, including an accounting of Alaska’s in-boundary and extraction-based emissions.  

10. Order DEC [Department of Environmental Conservation], Commissioner Hartig, and Governor Walker, in collaboration with Defendants, to develop and submit to the Court by a date certain an enforceable state climate recovery plan, which includes a carbon budget, to implement and achieve science-based numeric reductions of Alaska’s in-boundary and extraction-based emissions consistent with global emissions reductions rates necessary to stabilize the climate system and protect the vital Public Trust Resources on which Youth Plaintiffs depend… 

In the Reynolds case the request is for the court to:

6. Order Defendants to prepare and implement an enforceable comprehensive statewide remedial plan, including specific dates and benchmark targets, to phase out fossil fuel use and draw down excess atmospheric CO2 through forest and soil protection so as to stabilize the climate system and protect the vital natural resources on which Plaintiffs now and in the future will depend;  

7. Preliminarily and permanently enjoin Defendants from substantially impairing the natural resources and scenic beauty of the state of Florida in violation of the common law and Florida Constitution.

The requested remedies in these cases are incredibly broad in scope. If fully granted, the government defendants will be required to impose a regulatory scheme far exceeding anything they have been ordered to do in the past—whether the government involved is a state’s or the nation’s.

The respondent regulatory schemes would make Obama era climate regulations like the CPP look limp. The Juliana, Sinnok, and Reynolds cases are not simply about regulating a piece of the climate puzzle, e.g., what’s being belched out of auto tailpipes or up the smoke stack of a coal-fired power plant. They are about regulating society.

Consider again what the Sinnok and Reynolds plaintiffs have asked their courts to order but with less background noise. The requested relief would read something like—

draft and deploy an enforceable science-based plan consistent with the rate of global emission reductions necessary to stabilize the climate system. 

Complying with the court order would not only require the phase-out of fossil fuels and a drawing down of excess atmospheric CO2; it would necessitate setting limits on all manufacturing, construction, farming, and transportation—in essence on all anthropogenic activities science says are the cause of global warming.

In the abstract this can be done, ultimately it will have to be done on a global basis. Is it a realistic order of the court to a state or even to the federal government?

The question of a court being able to provide a realistic remedy to a plaintiff’s problem is far from an idle one. It is one of the three questions that must be answered in the affirmative before a plaintiff is given standing to sue.

The question has played a prominent role in the decision of nearly every landmark environmental case. It was a question asked before the Juliana plaintiffs were allowed to plead their case; it will be asked again and again in every environmental law case going forward in which a plaintiff’s standing is called into question.

My concern here is not about a court’s ability to fashion an appropriate remedy should the plaintiffs in these cases win. Rather, it is about the scope of the order and the possibility of a government defendant’s refusing to comply.

That the plaintiffs in these cases are being granted standing to sue suggests the courts have some notion of what they can rightfully order governments to do to remediate, at least partially, the situation. The state and federal government defendants in these cases are understandably nervous about being ordered to regulate a wide swath of society. Their concerns are in part expressed in the way state officials characterize these suits—calling them impracticalunrealistic, and mere publicity stunts. Their concerns could easily translate into a refusal to comply.

In Florida, Governor Scott’s spokesman said of the Reynolds case:

The Governor signed one of the largest environmental protection budgets in Florida’s history last month – investing $4 billion into Florida’s environment. The Governor is focused on real solutions to protect our environment – not political theater or a lawsuit orchestrated by a group based in Eugene, Oregon.

Reynolds is not the first time Our Children’s Trust has filed in Florida. In 2011 a petition asking that state agencies create a science-based emissions reduction plan was denied.

Alaska’s Commissioner of  Environmental Conservation  wrote in a letter to the plaintiffs that the remedy sought in the Sinnok suit was

…inconsistent with practical and fiscal constraints on the State and DEC. For example, the petition would require that an annual carbon accounting and inventory of both in boundary and consumption emissions be made available to the public with a lag time of no more than one year. 

DEC’s current financial and staff resources would not be sufficient to undertake the multiple requests in the petition and would require additional appropriations from the Alaska Legislature.

Governor Scott is a known climate-science denier and obvious Trumpstefarian when it comes to the environment. He has reportedly prohibited his staff from using the words climate changeglobal warming, and sustainability. A constitutional amendment was required to force Scott and legislative leaders in Florida to restore funding for water and land conservation programs.

Although the statement made by the Alaska DEC Commissioner was softer and more sympathetic in tone than Governor Scott’s response, the fact is complying with the proposed remediation order would require of the State something it says it can neither afford nor is otherwise prepared to do. What’s a court to do under these circumstances?

Should a state’s governor and the legislature just not comply with a court order, there is actually little that can be done through the court system. A state cannot realistically be held in contempt of court and jailed until it sees things differently. Although infrequent, there are those times when a plaintiff wins in court, but the victory comes sans remedy.

There is, however, something that can be done outside of the court system that I believe should be considered more often by climate and clean energy advocates and not just in response to a legal victory with no practical remedy attached—citizen-led ballot initiatives (Plan C).

These initiatives have been called the most direct form of democracy. Like direct lobbying of lawmakers and court actions, citizen-referenda are not quick fixes to what ails the environment. Only 24 states allow citizen-initiated statutes and/or constitutional amendments. The process takes time and money.

The clean energy and climate communities have some experience with these direct ballot mechanisms, albeit with mixed results. Given the hyper-partisanship of today’s politics and the limitations in what a court can direct a government to do and what governments are willing to do by court order, referenda need to be more widely considered as a viable advocacy option.

Look for Part 2 of this article in the next few days when I will be describing the most recent climate-related ballot initiatives and discussing some of the positives and negatives of taking the case for combatting climate change directly to voters.

[i] Note that the Juliana plaintiffs have listed multiple remedies, not all of which involve putting a national emissions plan in place. As a practical matter, however, the only remedy that can hope to accomplish the required constitutional protections is the same as that being asked in the Sinnok and Reynolds cases.

Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.

This article was originally published by the Civil Notion Blog.

The MAHB Blog is a venture of the Millennium Alliance for Humanity and the Biosphere. Questions should be directed to joan@mahbonline.org

MAHB Blog: https://mahb.stanford.edu/blog/plan-c-part-i/

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