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OpEdNews Op Eds    H1'ed 10/22/20

There's Nothing Sacred about Nine Justices; a Livable Planet, on the Other Hand . . .

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From New Yorker

The Republican-controlled Senate, by any measure, is acting dishonorably as it moves to confirm Judge Amy Coney Barrett for the high court: having previously declared that Presidents in their last year in office should not be able to nominate a new Justice, it reversed this "McConnell rule" when it served them to do so. The Trump years have been so ugly that this hypocrisy doesn't stand out as sharply as it should, but it is an ignoble thing to have done and, in Barrett's case, to have gone along with.

Still, it's not the most remarkable thing about the moment. For me, anyway, that came when Senator John Kennedy, of Louisiana, asked Barrett if she had an opinion on climate change. "I've read things about climate change," she said. "I would not say I have firm views on it." It's hard to imagine that an intelligent and highly educated person, such as Barrett, would not have reached a conclusion on the key questions facing the future of life on earth: Is global warming dangerous, and is it caused by humans? Neither of these positions is controversial among the scientific community, nor, for that matter, in the Catholic community where Barrett makes her spiritual home. Pope Francis's lengthiest and most important encyclical, "Laudato Si," takes on the climate crisis with a philosophical and sociological depth that few others have even attempted. The Pope's newest encyclical, "Fratelli Tutti," released this month, covers much the same ground, and he has helpfully produced a ted talk that makes the point in much sharper terms. "We must act now," he said, which is what every scientist studying the crisis has said, too.

My guess is that Senator Sheldon Whitehouse, of Rhode Island, probably explains such evasiveness best. After years of tracking the influence of dark money on the courts (as he demonstrated at Barrett's hearings), he was one of nine Senate Democrats who last week released a vital report. Titled "What's At Stake: Climate and the Environment," it explains the legal doctrines that the courts will likely use to make the regulation of greenhouse gases more difficult (unitary executive theory and the non-delegation doctrine chief among them, which Abbie Dillen discusses in an interview below). Whitehouse's bà te noire is Charles Koch, who has reportedly spent millions of dollars backing Barrett's nomination, and who is among the nation's biggest oil and gas barons. His Americans for Prosperity group has been ridiculing clean energy for years -- back in 2008, it offered free balloon rides over crucial states as part of a "Hot Air" tour attacking solar and wind energy. (As the Pope pointed out in his recent encyclical, "often the voices raised in defense of the environment are silenced or ridiculed, using apparently reasonable arguments that are merely a screen for special interests.")

It is clear, first, that regulation is going to be essential to bring greenhouse gases under control, and, second, that it's going to have to happen fast. The world's climate scientists have stated plainly that the next decade represents the critical time frame: without fundamental transformation by 2030, the chances of meeting the Paris accord's climate targets are nil. Given Barrett's performance at her hearings, it seems doubtful that she'll let America play its role -- if you're not even clear that climate change is real, how much latitude will you give government agencies to attack it? As with so many things about climate change, the problem is ultimately mathematical. Joe Biden, should he be elected, acting not out of anger but out of sorrow at Republican gamesmanship, could make sure that the will of the people, not just the will of Charles Koch, is represented the bench. The composition of the Supreme Court has varied over time from five Justices to 10; 11 seems like the right number for 2021. Or maybe 13.

Passing the Mic

Abbie Dillen is the president of EarthJustice, the country's most important nonprofit environmental-law firm. In her 20 years there, she's gone to court to protect wolves and grizzly bears and to close down dirty coal plants.

The courts have served as a bulwark against the worst environmental excesses of the Trump Administration, but, as the President's appointments to the federal bench pile up, is that bulwark beginning to crumble?

Not yet. The Trump Administration has been so lawless that even Trump-appointed judges have been stepping up to check abuse. Over the last four years, the lost opportunity for progress has been huge. But litigation by public-interest lawyers and progressive states has been extraordinarily successful in limiting the damage. EarthJustice has so far filed 159 lawsuits against the Administration. Of the 50 cases that have been decided, we have won 41, and we expect to improve that record on appeal. Because the vast majority of environmental rollbacks have been overturned or stalled in the courts, there is still an opportunity for swift repair.

That said, stacking the courts with Federalist Society picks that are hostile to government protections is bad for the planet. The impact will become more apparent as soon as there is strong federal action on the climate crisis, entrenched environmental injustice, and biodiversity collapse. At that point, polluting industries will be going to court to challenge government action, and they will want to make their cases before Trump-appointed judges.

Will state courts be able to exert meaningful control on companies like ExxonMobil, or will their lawsuits end up under federal jurisdiction?

State and cities should be able to pursue their state-law claims against fossil-fuel companies in state courts, and several federal courts have held as much. However, climate cases have a way of attracting the Supreme Court's attention, and we will see whether conservative Justices abandon their solicitude for the states to favor industry. The first test will come in the New Year, when the Court hears arguments on a narrow procedural issue in the city of Baltimore's case against Exxon and others.

No matter how it all plays out, these lawsuits are creating the spectre of liability on a scale that executives and shareholders can't ignore. And with every new climate disaster it becomes more politically popular to argue that Exxon and other companies should help pay for the damage. Some energy companies are seeing the risks and getting ahead of them by pivoting to clean energy.

Also, it's always worth underscoring the power of state lawmaking. States are exerting their greatest influence over fossil-fuel companies by enacting ambitious clean-energy standards.

What novel areas of jurisprudence and arguments should we look for in the years ahead?

The climate crisis touches everything, and, just as climate has reshaped energy law, climate change will become a defining issue in other areas, including civil rights, land use, insurance law, and water law.

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Bill McKibben is the author of a dozen books, including The End of Nature and Deep Economy: The Wealth of Communities and the Durable Future. A former staff writer for The New Yorker, he writes regularly for Harper's, The Atlantic Monthly, and The (more...)
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