https://us7.campaign-archive.com/?e=a9fdc67db9&u=9d011a88d8fe324cae8c084c5&id=a7306c1128
It’s easy to look at “climate change” litigation in the U.S. and conclude that a good percentage of our environmental bureaucrats and judges who get involved in these things are crazy. Thus many courts around the country (mostly state courts) have allowed lawsuits seeking damages against oil companies over greenhouse gas emissions from their products to proceed at least beyond the preliminary stages. And the EPA, early in the Obama administration (2009) issued what is called the “Endangerment Finding,” declaring CO2 and other GHGs to be a “danger to public health and welfare” — a ridiculous determination that the Trump administration nevertheless did not attempt to undo, and which substantially ties the government’s hands in contesting wacky climate-related cases. Not that the Biden Administration can be counted on to contest these cases at all, no matter how preposterous.
But we do have in the U.S. this thing called the doctrine of “non-justiciability.” That is the doctrine under which our courts steer clear of cases that ask courts to rule broadly on matters of public policy that are more legitimately the province of the legislatures. At the federal level, the non-justiciability doctrine arises out of the separation of powers embodied in the Constitution’s structure, as well as by the language of Article 3 Section 2, which describes the jurisdiction of the federal courts only in terms of “Cases” and “Controversies.” The doctrine has been around for a long time, and is well-established in many precedents. As discussed in my most recent post, it was the non-justiciability doctrine that sank the Juliana case, which sought to get a court to order the end of the use of fossil fuels in the U.S. on the basis of the Due Process clause of the Fifth Amendment and the Equal Protection clause of the Fourteenth Amendment. Even two of three Obama-appointed judges on the Ninth Circuit panel agreed with that rationale. Had the case reached the Supreme Court, the 6-3 “conservative” majority, in my judgment, would be highly likely to apply the “non-justiciable” rationale to privately-brought litigation that seeks a fundamental restructuring of the economy through court order. (A different issue is whether the Supreme Court, in the presence of the Endangerment Finding, would try to overrule a restructuring of the economy via EPA or other bureaucratic regulation that claimed some statutory basis, however flimsy.)