OK, THESE TWO AREN’T REALLY CANARIES—I just liked the picture ….  (Picture credit: People’s Daily, China on Facebook and Twitter).

This article is latest in the Canary in the Coal Mine series.

The “canary in a coal mine” is a metaphor originating from the time when caged birds were carried into the mines as an early warning system; the canary would die before methane and carbon gases reached levels hazardous to humans.

Partisan pressures are causing energy and climate defenders to offset legislated policies with judicial precedents. Climate challengers had thought to do the same throughout the Obama administration.

It is notable that states, clean energy and environmental advocates and others are so obviously casting glances to the courts this early in Trump’s presidency. If looks could tell, these would:

  • Portend a pattern that will continue for at least the next four years; and
  • Belie a lack of confidence on the part of climate defenders that the momentum–built over the past 8 years–towards a low-carbon  economy cannot be maintained through political discourse.

It is almost as if the world were staring at itself through Alice’s looking glass. Everything is as it was just months ago—except in reverse.

Trump has now signed 16 executive orders in less than 60 days; one short of President Obama’s 17 at the same time in his first term.

Although the number is neither newsworthy nor troubling, what it signifies is. The gaping divide between Republicans and Democrats encourages  unilateral presidential actions and casts the courts in the role of policymaker.

Literally tens of thousands of executive orders have been issued since George Washington occupied the presidency. In all that time, only a small percentage have ever been challenged in court and an even smaller number were found to violate the U.S. Constitution. Trump is on track to exceed the total number of challenges and violations of all those before him.

It is not that prior executive directives were less impactful than Trump’s recent travel order or Obama’s directive to EPA that led to the Clean Power Plan (CPP). Lincoln emancipated Southern slaves with a presidential proclamation. FDR used the power of the office to intern 120,000 Japanese Americans.

The orders of both President Obama and DJT differ from their predecessors in the higher proportion of major actions they represent. They differ from each other’s in the polarity of ideas they reflect.

Obama issued many of his climate related directives out of frustration with Congress. Democrats held control of the executive and legislative branches only for the two years the 111th Congress was in session. For the remainder of the Obama presidency, Republicans held sway over one or both chambers.

Republican refusal–to credit scientific evidence in support of climate change and allegiance to the fossil fuel industry–prompted President Obama to invoke the power of the presidency in defense of the environment.

President Trump and the Republican congressional majorities are taking advantage of their current position to rollback policies they never supported. Given the stark differences between the parties and the nearly even division of the electorate, the political pendulum is unlikely to stop swinging between the extremes any time soon.

In the presence of such opposing philosophies, inconsistency emerges as the  arch enemy of policy. No market works well in the absence of certainty. The  more extreme and erratic the executive and legislative branches, the more federal courts will be looked to for de facto policymaking.

Courts of law are hardly ideal policy venues. It is not as if the judiciary offers the same latitude for the pursuit of desired policies as the political arena. Consider that judges are meant to interpret—not make—law. Add to this the:

  • Relatively narrow rules of engagement/practice, e.g. standing.
  • Time required to reach final resolution, i.e. years not months; and,
  • Expense of litigation, e.g. lawyers, expert witnesses and court fees.

Ordinarily these considerations would dampen desires to settle things in court,  as compared to the more free-wheeling atmosphere of the political arena. In this time of hyper-partisanship, however, the third branch appears a welcoming place.

Consider:

  • The doctrine of stare decisis means judges will look to established case law, i.e. precedents, when rendering an opinion.
  • Case law already recognizes the occurrence of climate change, accepts  the preponderance of scientific evidence linking climate change to human activities, acknowledges government’s obligation to protect citizens and considers the failure to protect an actionable offense.
  • The power of judges to stay regulation is also the power to stop deregulation.
  • The difficulty of overturning judicial decisions through the legislative process and the near impossibility of doing so through executive power.

States like Massachusetts, California and Washington, as well as environmental and clean energy organizations, will now stand at the bar where once stood the states of Oklahoma, Texas, West Virginia, North Dakota and coal mine owners.

Connecticut’s governor and attorney general have made no secret that the state is likely to sue EPA over its rumored relaxation of clean air regulations in nine Rust Belt states. Understandably, Governor Malloy has suggested the state would prefer not to be the nation’s tailpipe.

Who Stands Where?*

When Governor Malloy, the NRDC, the Murray Energy Corporation and others speak of suing the EPA, they will be filing their claims in a federal court.

The right to sue is far from unfettered. Before being allowed in to the courtroom as anything other than a spectator, plaintiffs are required to answer three basic questions:

  1. Have you suffered an actual injury?
  2. Was the injury caused by the defendant’s conduct?
  3. Will what you’re asking of the court really remedy anything?

These threshold questions are mostly a matter of fact. A coal company’s negligence, for example, is usually determined by reference to the industry’s standard practice.

Plaintiffs answering the threshold questions in the affirmative will be allowed to approach the bench. Whether the case goes forward, however, will depend upon the court’s own answers to another series of questions:

  • Does it have jurisdiction over the subject matter?
  • Does it have the authority to direct an agency to do what is required to redress the grievance?
  • Is the harm suffered specific to the plaintiff(s) or does it broadly affect the entire planet?

Taking the court questions in reverse order, harm is personal. A plaintiff who’s only claim is, global warming is bad for the planet, will not be allowed either to pass go or to collect $200.

A direct link between the plaintiff’s asthma and the coal-fired generating unit down the street must be established. Similarly, a plaintiff like Murray Energy Company must make the connection between their bankruptcy and an overly aggressive regulation or regulator.

The questions of court authority and jurisdiction are a bit trickier to answer.  They involve the Constitution and can be changed by an act of Congress.

The kind of cases a federal court can rule on, i.e. jurisdiction, is defined by Article III Section 2 of the U.S. Constitution. For the purpose of this discussion, it is important to know:

  1. Federal district courts have original jurisdiction in all actions arising under the Constitution and laws of the United States.
  2. Congress has the authority to effectively eliminate any judicial review of certain federal legislative or executive actions.
  3. Congress’ authority to limit judicial review does not apply to state challenges of federal actions. The right of a state to challenge the  federal government in federal court was established by SCOTUS in the case of U.S. v Texas (1893).

The court’s authority over an agency also goes to the threshold question of remediation. If the court can’t fix it, it is unlikely to want to hear about it.

The moral of the standing/authority story is: the right of a plaintiff to sue the federal government is contingent upon meeting certain Constitutional and  case law requirements; and, it can be limited by acts of Congress.

Be On The Lookout

The best evidence of rising reliance on the courts by clean energy and environmental advocates is what climate doubters and deniers are doing.

Beyond the reign of executive orders, anti-regulatory climate skeptics have already begun introducing legislation to constrain judicial review of regulatory rollbacks and federal clean energy and climate programs.

Congressional Reforms

Legislation designed to destabilize the plaintiff pool was recently introduced by Rep. Goodlatte, Bob [R-VA-6]. and passed by the House.

The Fairness in Class Action Litigation Act of 2017, H.R. 985, places onerous burdens on the formation of any class of plaintiffs. Among its provisions is the requirement that each member of the class has suffered the same type and  scope of injury. It is an almost impossible requirement to meet.

I’ve written before about Congressman Goodlatte. He is chairman of the House Judiciary Committee and lead sponsor of H.R.5, the Regulatory Accountability Act of 2017.  If enacted, the legislation would effectively overturn the Chevron Doctrine. Chevron played a pivotal role in the Supreme Court’s 2007 decision leading to EPA’s endangerment finding.

Sue and Settle

Despite the accusations of climate change deniers against environmental advocates in the Obama years, sue and settle could as easily be engaged in by the National Mining Association and the EPA under the leadership of Mr. Pruitt.

The alleged practice is fairly simple to understand. It is a staged law suit whereby the defendant agency basically accepts the plaintiff’s statement of the facts and accedes to the requested remedy.

Because the facts are no longer at issue and the parties agree, the proceedings are stopped and a court-ordered consent decree is issued. The agency then amends its actions in accordance with the agreement.

A simple example is: the plaintiff sues the EPA alleging it has suffered a demonstrable harm, e.g. respiratory problems, caused by the local coal burning power plant. Plaintiff contends that EPA has failed to regulate the pollutant consistent with the authority granted it by the Clean Air Act.

The EPA, says: yup, we failed in our responsibility, agree that the plaintiff has been harmed and, if ordered by the court, will rectify the situation. As there is no longer a dispute between the parties, including whether the agency has the authority as stated by the plaintiff, the court decrees case closed and orders the Agency to regulate the pollutant.

Sue and settle is illegal because it belies collusion between plaintiffs and defendants. It is also a standing accusation of Pruitt as Oklahoma’s attorney general, the Heritage Foundation and others.

I know of no successful prosecution of such collusion. If, however, the practice exists, it is omni-directional. It could be as easily employed by the current administration as it has been alleged of the previous.

Broken Branches

A rise in legal challenges to federal actions is likely in the coming months. The trend is a warning of something being wrong with the system. Today the federal government is long on checks and short on balances.

The aftershocks of the November elections continue to roil the landscape. I am concerned that the imbalance of the political arena will spill into the judiciary.

There are currently over 120 vacancies on the federal bench. Tomorrow’s canaries will be watching for any concerning signs in how those positions are being filled.

*Legal standing is complex. It is impossible  to do justice to it in 2K words or less. My goal is simply to give readers a better understanding of events as the will be unfolding over the course of the Trump presidency.