The judicial branch is our best hope for climate action under Trump.

The Judicial Branch Is Our Best Hope for Climate Action. Is It Up to the Task?

The Judicial Branch Is Our Best Hope for Climate Action. Is It Up to the Task?

The state of the universe.
Sept. 11 2017 11:44 AM

The Judicial Branch Is Our Best Hope for Climate Action Under Trump

Is it up to the task?

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There are many judges who will face climate lawsuits in the weeks and years to come, as a result of the current administration and Congress’ lack of action.

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It’s been a rough few months for anyone who cares about substantive action on climate change—we’re out of the Paris Agreement, the head of the Environmental Protection Agency is reassessing the science on climate change, we’re recommitting to coal. This lack of action is in stark relief to the increasingly extreme weather, some proportion of which may be attributed to climate change.

But a bright spot emerged in July when a federal appeals court came down in favor of a rule enacted by Barack Obama that will curtail methane, a greenhouse gas 30 times more potent than carbon dioxide that is being emitted in high amounts from natural gas and petroleum hydrofracking. Without a better plan to cap emissions, it will be almost impossible to avert catastrophic climate change. The methane case is likely to be appealed and ruled on again by additional judges, but this was a promising victory for a rule that, if enacted, will cut emissions of volatile organic compounds and methane from commercial sources, in particular, protecting human health.

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The methane case was another indication that if we want climate action from this government, the judiciary has become the only branch likely to give it to us. That is frightening for the obvious reasons—that our president and our Congress are not interested in protecting us from this clear and real threat—but it should also be concerning. Leaving to the judiciary important decisions about environmental regulation—which will play a large role in how we fight climate change—is also frightening because the judicial branch has often been reticent to make decisions about this topic.

For one thing, many judges have limited experience in this area. They are reluctant to take on cases involving climate change, often arguing that litigants do not have “standing”—the idea that a plaintiff can prove she has been harmed by an issue that the court can address. This is partly due to how difficult it is to prove direct causation when it comes to harm from climate change—though that difficulty does not mean it is not happening. But this is no reason to dismiss a case. Indeed, there is plenty of legal precedent for establishing that climate change will cause real harm to people; the Supreme Court addressed standing when it allowed Massachusetts to bring a case against the EPA that would regulate tailpipe emissions to avoid massive climate-induced coastal flooding in the future.

Other judges have said that climate is a “political question” that should be addressed in the other two branches rather than the courts. Yet the election of Trump and the most recent Congress have led to immediate backward movement on climate, leaving the judiciary as the only branch with the potential to protect humanity from itself. Judges also often defer to government agencies, mostly the EPA, saying that it is responsible for generating evidence about climate change and has the executive power to decide what to do about it. The current EPA, however, is more interested in relitigating established science than in taking action to stop clear threats. EPA Administrator Scott Pruitt has already tried to sue to roll back something called the endangerment finding, which establishes that carbon dioxide is harmful to human health. The Trump administration has also nonsensically decided to use data from 2003 to establish the social cost of carbon, a figure that allows us to calculate the future cost of climate change to encourage limiting emissions.

There are many judges who will face climate lawsuits in the weeks and years to come, as a result of the current administration and Congress’ lack of action. Cases are being brought to the courts about energy development, including investments in renewable energy and energy efficiency that could catalyze or retard an American transition to energy independence. In other instances, cases are brought to the courts for judges to enforce environmental laws that protect critical habitat for the species most dear to us, or protect our children from illegal levels of airborne toxics—all cases that affect the trajectory of climate change. If history is any indication, these cases will likely be very difficult to resolve. But the judiciary needs to set aside its reticence to address climate change. Scientific evidence demonstrating the risks and damages of airborne pollutants and their resultant impacts is strong. As my team’s research released last week points out, science has been critical to cases about endangered species, energy, and many other legal challenges. It can be so for climate change, too. Experts will come to the courts. There are many plaintiffs who have standing. There is little political question in many cases.

The founders of this nation meant the courts to be a place where an individual could leverage a grievance if she was wronged. Many are being wronged by climate change, and the court system should be the place where they can obtain redress. In this current administration, the court system has become the key avenue through which climate change can be affected. Judges should take this to heart. Like the judges on the federal appeals court that ruled for the methane rule, others should figure out how to deal with climate concerns.

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Sabrina McCormick, Ph.D., is associate professor at George Washington University.