Another Of The “Stupidest Litigation” Contenders Dies — But Just Barely Francis Menton
https://www.washingtontimes.com/news/2020/jan/16/another-dud-in-the-string-of-bombshells/
Among the many important initiatives of this website has been holding the competition for the Award for “Stupidest Litigation in the Country.” Nominees for the coveted Award have included the group of lawsuits brought by various cities and counties against major oil companies, seeking to hold those companies liable for prospective physical damage from things like sea level rise, alleged to result from fossil fuel emissions; and the lawsuit brought by New York’s Attorney General against Exxon claiming that Exxon defrauded its own investors by downplaying the risks of climate change to its business. Yet to many readers, the very first nominee for the Stupidest Litigation Award has always been the clear leading contender to win it. That nomination, made in December 2017, went to the litigation titled Kelsey Cascadia Rose Juliana v. United States. This is the case where a group of adolescents in the Pacific Northwest have sought an injunction to require the federal government to decree an end to all use of fossil fuels, in order to “save the planet.” Really, it’s hard to top that one for Stupid.
But just because a particular litigation is the leading contender for the Stupidest Litigation Award does not mean that no judge will grant victory to the plaintiffs. After all, the whole idea behind each of these Stupid Litigations is to offer some judge a thinly-veiled rationale to become a hero in the progressive movement by taking self-government away from the people and turning control over to the bureaucrats and experts. Which is why it is significant that yesterday, a three-judge panel of the federal Ninth Circuit Court of Appeals ordered the Juliana case dismissed. Moreover, the nature of the dismissal is such that the case as a practical matter is unlikely to come back. The only remaining recourses for the plaintiffs are to the full Ninth Circuit (known as an en banc rehearing), and/or to the U.S. Supreme Court. Neither is likely to change this result.
But the remarkable thing here is not that this completely insane case has effectively ended, but rather how close it came to continuing, and in the process, to doing enormous damage to the country. The decision came on a 2-1 vote from the three judge panel. The dissenting judge took the position that, when presented with ludicrous apocalyptic rhetoric uttered by a few so-called “experts” for the plaintiffs, claiming that we are on a path to “the Nation’s willful destruction,” it then became the responsibility of a handful of unelected judges who fall for such preposterous end-of-days scenarios to order the government to restructure the entire economy. After all, there’s a “constitutional right” not to have the Nation destroyed. And isn’t vindicating such “constitutional rights” the whole reason we have federal judges?
Almost as remarkable was that the two judges in the majority were clearly sympathetic to the position of the dissenter. But somehow the two in the majority just barely held themselves back from following the dissenter completely over the cliff into the abyss of insanity.
This litigation is a case study in how the forces of the progressive Left can seek to permanently undo our democracy through control of the presidency and the courts. The case started with a complaint in 2015, filed in the District of Oregon (undoubtedly selected because of a plurality of favorable judges for such a matter). Many of the allegations were summarized in my December 2017 post. As a little taste, here is the first sentence of Paragraph 1 of the Complaint:
For over fifty years, the United States of America has known that carbon dioxide (“CO2”) pollution from burning fossil fuels 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 wellbeing and survival.
And here is an excerpt from a basically randomly selected paragraph, number 150:
During the last decade, Defendants have repeatedly stated that allowing “business as usual” CO2 emissions will imperil future generations with dangerous and unacceptable economic, social, and environmental risks. As Defendants have acknowledged, the use of fossil fuels is a major source of these emissions, placing our nation on an increasingly costly, insecure, and environmentally dangerous path.
After drawing a sympathetic judge in Oregon (Ann Aiken), the Obama Justice Department made a very perfunctory motion to dismiss, which Judge Aiken in due course denied. Next, on January 13, 2017 — one week before President Trump was inaugurated — the Obamanauts filed their Answer. The Answer — a paragraph by paragraph response to the Complaint — was shocking in its ineptitude and intentional destructiveness. As examples, here is a portion of the response to Paragraph 1:
Federal Defendants admit that . . . [they] have been aware of a growing body of scientific research . . . that increased concentrations of atmospheric CO2 could cause measurable long-lasting changes to the global climate, resulting in an array of severe deleterious effects to human beings, which will worsen over time.
And the response to Paragraph 150:
Federal Defendants admit the allegations in this paragraph [150].
In short, the Obamanauts had done everything they could to leave the Trump people in an impossible position. With ludicrous “facts” of a fifty to one hundred year out weather forecast of climate doom already admitted on behalf of the government, the Trump Justice Department was left to struggle to try to get somebody at some level of the court system to consider the justiciability of this ridiculous case. Since early 2017, the case then went first to the Ninth Circuit, and then to the Supreme Court, and then back to the District Court, and now once again to the Ninth Circuit.
In the new Ninth Circuit opinion, the dissenting judge is Josephine Staton, an Obama-nominated District Judge from the Central District of California, sitting by designation. You really need to read her opinion to see how far a seemingly-intelligent person can go in falling for the preposterous climate doom scam. Here are some excerpts:
[C]arbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions created by burning fossil fuels are devastating the planet. . . . According to one of plaintiffs’ experts, the inevitable result, absent immediate action, is “an inhospitable future . . . marked by rising seas, coastal city functionality loss, mass migrations, resource wars, food shortages, heat waves, mega-storms, soil depletion and desiccation, freshwater shortage, public health system collapse, and the extinction of increasing numbers of species.” . . . [A]s described by plaintiffs’ experts, the injuries experienced by plaintiffs are the first small wave in an oncoming tsunami—now visible on the horizon of the not-so-distant future—that will destroy the United States as we currently know it. . . . [A]nother of plaintiffs’ experts echoes, “[t]he fact that GHGs dissipate very slowly from the atmosphere . . . and that the costs of taking CO2 out of the atmosphere through non-biological carbon capture and storage are very high means that the consequences of GHG emissions should be viewed as effectively irreversible” (emphasis added). In other words, “[g]iven the self-reinforcing nature of climate change,” the tipping point may well have arrived, and we may be rapidly approaching the point of no return. . . . According to plaintiffs’ evidence, our nation is crumbling—at our government’s own hand—into a wasteland. In short, the government has directly facilitated an existential crisis to the country’s perpetuity.
Yes, it is the dreaded “tipping point,” now “rapidly approaching.” But wait a minute — Hasn’t the good Judge Staton been told that some dozens of these so-called “tipping points” have already come and gone without anything noticeable occurring? Hasn’t she taken the Manhattan Contrarian Climate Tipping Points Quiz? Obviously, she doesn’t have a clue.
There follows Judge Staton’s deep constitutional analysis. This is the gist: If some one or a few “experts” have predicted impending doom in sufficiently apocalyptic terms, that gives a single federal judge carte blanche to dismiss our democracy and take over the country in order to save it.
[T]he perpetuity of the Republic occupies a central role in our constitutional structure as a “guardian of all other rights,” . . . “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society . . . .” . . . And, of course, in our system, that organized society consists of the Union. Without it, all the liberties protected by the Constitution to live the good life are meaningless.
Got that? The takeover of the country by a federal judge is necessary to protect our constitutional rights.
The other two judges on the panel — Hurwitz and Murguia — are both full Ninth Circuit judges, and also appointed by Obama. And both of them also bought completely into the narrative of climate doom peddled by plaintiffs and their “experts” (admittedly without effective opposition on behalf of the government) (E.g., “Copious expert evidence establishes that this unprecedented rise [in atmospheric CO2] stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.”) But with great reluctance, the majority finds the case non-justiciable:
There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.
Whew! If one of these people had gotten up on the other side of the bed that day, it could just as easily have come out the other way. Let alone, if Merrick Garland had made his way onto the Supreme Court, that could have made a majority of five to support a judicial takeover of much of the federal government.
Congratulations to Jeffrey Bossert Clark, the Justice Department lawyer who argued the case, and somehow managed to win it with one and three-quarters hands tied behind his back by the actions of the prior administration. Those who follow these things will recognize Clark as a guy who had his confirmation held up in the Senate for more than a year by the tactics of Chuck Schumer.
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