This is not an article about Swedish brat and serial crier Greta Thunberg. She is in a category of child abuse all to her herself with her paternal-created Facebook postings, appearances before the UN, and jetting about the world spewing carbon emissions in the process while world leaders like Justin Trudeau fall under her gaze (which is a little creepy, IMHO).
In 2015, a gaggle of kids- 19 in all- filed a lawsuit in District Court in Oregon. Why Oregon and not Alabama? Readers here know full-well that Oregon lies in the wild and wacky Ninth Circuit where any loony legal argument is entertained. The case is titled Juliana vs. United States and is about as broad an assertion one could get when it comes to climate change. The plaintiffs in the case asserted violations of substantive Due Process rights to life and liberty and seeks a redress of alleged wrongs by forcing the US government to cease the use and mining of fossil fuels.
There was a series of legal wrangling events which started almost immediately by the Obama administration to have the case dismissed. The Trump administration, upon taking office, took up opposition to the case deciding that even though the plaintiffs lacked standing to sue the government, the redress they sought would violate the Political Question doctrine of court jurisprudence.
Throughout this legal battle, the government has been steadfast in their correct belief that the plaintiffs had no standing to sue the government and that their legal theory for doing so was on incredibly shaky ground. Seeking a dismissal of the case which had been continuously denied by the lower courts, the Solicitor General under Trump took the cause directly to the Supreme Court seeking dismissal of the case. Although not outright dismissed, the Court issued an order in November asserting that previous reasons for denying dismissal were “no longer pertinent.” This was a not-so-subtle jab at the entire framework of the legal arguments of the plaintiffs in this case. The government did not get a 100% slam dunk dismissal of the case, but they got an appeal in the Ninth Circuit with new legal parameters set favorable to the government’s position.
Sure enough, a three judge panel of the Ninth Circuit issued a stay of the trial by a 2-1 vote. They will hear further argument regarding dismissal of the case in March of this year with briefs to be filed by late February. Given the somewhat stern warning from the Supreme Court and the majority decision at the appellate level, it appears that the courts have given these plaintiffs a way to save face and exit stage left.
While the 2-1 decision goes out of its way to establish climate change and carbon emissions as sacrosanct fact, they nevertheless question whether the courts are the proper avenue to address the issue. The majority wrote:
The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.
In short, take your case to the voters and politicians, kids, and get out of the courts. What this suit sought was to find a heretofore unrecognized Constitutional right to a life sustaining climate system.
Naturally, there was a lone dissenter, District Judge Josephine Staton sitting in designation on the three judge panel. Her dissent illustrates clearly the lunatic thinking of liberal judges. As a side note, guess who appointed Staton to the bench (if you guessed Obama, give yourself a pat on the back). Without getting into all the usual legal drivel, the pertinent part of Staton’s dissent is:
Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction…And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress.
She then uses the examples of desegregation orders from federal courts to justify this lawsuit. Hence, we are introduced to an unarticulated constitutional right to “the perpetuity of the Republic” (her words). Further, under this logic, if the political branches fail to act to address an alleged threat to the perpetuity of the Republic, it is a judge’s duty to intervene and tread where no politician dare. Besides such a “right” not to be found in any part of the Constitution, even if there was it would hamstring every act by every legislature and every Executive department action. Like it or not, contrary to Judge Staton’s beliefs, the political branches have an absolute and non-reviewable right to “destroy the Nation” through action or inaction.
So what are a bunch of children (now, many are adults) to do? They could slink away, pat themselves on their backs for the effort, and jet off to Sweden to join their patron saint, Greta Thunberg. It appears as if the three-judge panel gave these kids and their adult enablers the gentlest exit possible. Or they can appeal to the full Ninth Circuit, or even the Supreme Court. True to form like most spoiled adolescents, they have decided to make that en banc appeal to the full Ninth Circuit.
Given how the Supreme Court feels about the constitutional underpinnings of this case, or lack thereof, this could be a risky move for the plaintiffs and the Ninth Circuit. If they rule in favor of the plaintiffs and overturn the three-judge panel, the government will be before the Supreme Court before the ink is dry on the opinion. There, the Supreme Court will likely deal a death blow not only to the theory and the case, but seriously chill other environmental nuisance lawsuits that currently clog the courts. We know that there are two Justices (Gorsuch and Thomas) just itching for this.
The environmental Left has overplayed their hand. In a rare instance for Roberts, he intervened as the empathetic father and laid some ground rules going forth. Those rules provided guard rails that steered this case toward dismissal. There will be gnashing of teeth and inevitable tears, but they will eventually get over it. Unfortunately, what they really needed all along was a good hard smack on the ass.