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Climate Change

Ninth Circuit Dismisses Kids Climate Case for Lack of Standing (Updated)

A divided panel of the U.S. Court of Appeals for the Ninth Circuit finds the plaintiffs lack Article III standing in Juliana v. U.S.

|The Volokh Conspiracy |

Today a divided panel of the U.S. Court of Appeals for the Ninth Circuit concluded that the plaintiffs in Juliana v. United States—the so-called "Kids Climate Case"—lack Article III standing to pursue their ambitious claim that the federal government is violating their constitutional rights by facilitating the use of fossil fuels and failing to take action to forestall the threat of climate change. This outcome was almost certainly foreordained, for reasons I noted here, as the Supreme Court had made clear it did not think much of the theory behind this suit. At the same time, the panel majority reached the result compelled by a proper understanding of existing precedent.

Judge Andrew Hurwitz wrote the majority opinion, joined by Judge Mary Murguia. District court judge Josephine Staton (sitting by designation) dissented. Although all three judges accepted the severity of the threat posed by climate change, they disagreed quite strongly on whether this case, as put forward by the plaintiffs, presented a justiciable case or controversy.

Here's how the majority summarizes the case and its conclusion:

In the mid-1960s, a popular song warned that we were "on the eve of destruction." The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

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.

The majority accepts the "copious expert evidence" in the plaintiffs case showing that the "unprecedented rise" in atmospheric concentrations of greenhouse gases "stems from fossil fuel combustion and will wreak havoc on the Earth's climate if unchecked," and admits that the federal government "affirmatively promotes fossil fuel use in a host of ways." Nonetheless, it recognizes that not every grievous wrong is fit for judicial resolution. While rejecting the government's argument that the plaintiffs should have styled their claims as Administrative Procedure Act challenges to discrete agency actions, it also rejected the plaintiffs' claims that a heretofore unrecognized constitutional right to a life-sustaining climate system (or, as the dissent would have it, a perpetual nation) meets Article III's requirements.

On the question of standing, accepting the allegations made by the plaintiffs, the majority concluded that at least one plaintiff was suffering a concrete and particularized injury-in-fact that was sufficiently traceable to the government's facilitation of fossil fuel use and development. "There is at least a genuine factual dispute as to whether" the various government policies complained of "were a 'substantial factor' in causing the plaintiffs' injuries," which was sufficient given the procedural posture of the case.

Then the majority reached the question of redressability:

The more difficult question is whether the plaintiffs' claimed injuries are redressable by an Article III court. In analyzing that question, we start by stressing what the plaintiffs do and do not assert. They do not claim that the government has violated a statute or a regulation. They do not assert the denial of a procedural right. Nor do they seek damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Rather, their sole claim is that the government has deprived them of a substantive constitutional right to a "climate system capable of sustaining human life," and they seek remedial declaratory and injunctive relief.

Here, the majority concluded, the plaintiffs had a hard time showing that the relief sought was both within the power of the district court to afford and substantially likely to redress their injuries.

The crux of the plaintiffs' requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, . . . but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.

Indeed. Even accepting the plaintiffs' inventive claim of constitutional right and that the sorts of remedies sought would redress the harms, the majority was unwilling to accept that a district court could take over climate policy for the nation.

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. . . . These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of "competing social, political, and economic forces," which must be made by the People's "elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country." Collins v. City of Harker Heights, 503 U.S. 115,
128–29 (1992). . . .

That climate change poses a serious threat does not change the underlying analysis. Citing the Supreme Court's recent decision in Rucho v. Common Cause, Judge Hurwitz explained that "Because 'it is axiomatic that 'the Constitution contemplates that democracy is the appropriate process for change,' . . . , some questions—even those existential in nature—are the province of the political branches." He further added:

Not every problem posing a threat—even a clear and present danger—to the American Experiment can be solved by federal judges. As Judge Cardozo once aptly warned, a judicial commission does not confer the power of "a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness;" rather, we are bound "to exercise a discretion informed by tradition, methodized by analogy, disciplined by system.'" Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).

Judge Staton, in dissent, took quite a different view. To call her dissent ambitious and aggressive is an understatement. As a rhetorical exercise, many will find it energizing and inspirational. As a legal opinion, however, I find it unmoored and lacking.

The dissent begins with a flourish:

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

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. So viewed, plaintiffs' claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation's demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs' constitutional rights without exceeding the Judiciary's province. For these reasons, I respectfully dissent

Judge Staton's opinion is no doubt earnest, but suffers from multiple fatal flaws. Not only does it enthusiastically embrace a heretofore unrecognized, unacknowledged and unarticulated constitutional right to "the perpetuity of the Republic," she also embraces the notion that if the political branches fail to act in defense of the nation, a district court judge can and should fill the breach. To state the argument plainly, shorn of adorning rhetoric, is to demonstrate its flaws.

Under Judge Staton's theory that there is a judicially enforceable right barring the "willful dissolution of the Republic," a federal judge is empowered to overrule the most monumental and consequential decisions of the political branches. Consider the implications: should Congress declare war against a formidable adversary—and should the President seek to prosecute that war even at the risk to the nation's security—a federal judge could hear a case that such exercises of federal power are unconstitutional and subject to judicial oversight. Like it or not, the political branches do have "the absolute and unreviewable power to destroy the Nation," such as through the imprudent or reckless use of the war powers, as that is the nature of our constitutional structure.

Judge Staton's opinion is no less problematic at the doctrinal level, as she misstates and misapplies Massachusetts v. EPA in her effort to show that the plaintiffs have satisfied the more mundane requirements of Article III standing and satisfy what she declares is "an ambient presumption of judicial review." It is as if she knows where she wants the opinion to go, and is willing to roll over those aspects of doctrine that get in the way. (In this regard, Judge Staton's approach to standing has much in common with that of Judge O'Connor in Texas v. U.S.)

While the Supreme Court found standing in Massachusetts, it was careful to stress both that state plaintiffs, as states, were entitled to a "special solicitude" in the standing analysis and that the existence of a procedural right to challenge the EPA's failure to act lessened the normal requirements of immediacy and redressability. None of this seems to matter to Judge Staton, however, as she blithely asserts that the lack of a procedural right is of little relevance and then (in footnote 7) makes the completely erroneous claim that the existence of procedural right matters more for "the first and second elements of standing" than for redressability, the express language of Massachusetts v. EPA (and the Kennedy concurrence from Lujan which it was quoting) notwithstanding.

The question now is whether the Ninth Circuit's Juliana decision will put an end to this case. I suspect the plaintiffs will petition for en banc review or certiorari, but I am not sure this is their wisest course. It seems to me that the Juliana majority sought to dismiss this case in the gentlest and narrowest way possible, so as not to preclude future litigation based on more viable legal theories. In many respects, that was the best the plaintiffs could have hoped for (especially after the Supreme Court had made its views on the subject known). In seeking Supreme Court review the plaintiffs would risk a more decisive loss and a more sweeping, nationally preclusive ruling that could forestall climate litigation across the board. They rightly fear the risks posed by climate change. The question now is whether they appreciate the risks of unduly aggressive climate litigation.

UPDATE: Julia Olson of Our Children's Trust, co-counsel for the plaintiffs, has announced that they will be filing a petition for rehearing en banc. As suggested above, in addition to thinking the underlying legal case is quite weak, I think seeking en banc review is a tactical mistake.

Should plaintiffs prevail en banc, a cert grant is almost assured, and the chances that the Supreme Court allows this case to proceed are close to zero. Moreover, a Supreme Court decision on this subject is likely to chill, if not actually preclude, climate litigation more broadly, including the various nuisance suits percolating in various lower courts. Thus it seems to me that the plaintiffs should be happy about obtaining favorable language in the Ninth Circuit's decision without provoking a decision that would foreclose future climate litigation.

SECOND UPDATE: For a reevaluation of whether an en banc petition makes sense for the plaintiffs, see this follow up post.

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70 responses to “Ninth Circuit Dismisses Kids Climate Case for Lack of Standing (Updated)

  1. So sadz…we failed you Greta.

    1. There’s no way the courts can impose global warming policy. It’s a super-complex issue that only the political branches can address.

      1. The political branches can’t do it either. So Cory Booker and AOC believed $3 trillion was all we could get from the government to pay for green solutions. Every study I have seen says we need at least $5 trillion to solve climate change…so even the best solutions are $2 trillion short. I guess Booker and AOC don’t have the courage to ask for enough money?? Those two are sniveling cowards!

        1. “The political branches can’t do it either.”

          That comment ignores decade after decade of liberal-libertarian progress with respect to important issues. America’s better elements will elect representatives who address this problem.

          1. You better hurry. Our betters say we only have 12 years.

          2. AOC doesn’t have the nutsack to propose a climate action plan would make a difference! I posted my plan on the Daily Kos and it is called the Greenest New Deal. So my program spends $5,375,143,909,725.96 and completely eliminates carbon AND methane emissions in America.

            One thing I discovered in my research is that birth control pills have a surprisingly large carbon footprint but that fetuses are like tiny carbon capture devices. So I would outlaw birth control pills but make abortion at 3 months free. The optimal amount of time for a fetus to capture the most carbon is 8 months. So in my Greenest New Deal I would pay women $500 to get pregnant and abort at 8 months which would actually take carbon out of the atmosphere!

            1. Stop it with all this infanticide talk. You’re turning Rev. Kirkland on, and I fear he’s having to walk around with his dog-eared copy of Myra Breckinridge held front and center to hide his excitement.

              1. Nick,
                Don’t worry about it. There’s not a single reader of the VC who pays attention to whatever Sebastian happens to be writing. Just let him blather on, then give him an encouraging pat on the head and send him on his way. It’s what we all (metaphorically) do.

            2. Could we have that $5,375,143,909,725.96 figure broken down and itemized? 🙂

        2. I could solve climate change for just a few billion.
          Just drill down 40 miles into the Yellowstone super volcano and detonate a thermonuclear device, it would reverse several thousand years of climate change rapidly.

          If the solution is to quit using fossil fuels the only real solution is nuclear power. But the people who claim climate change is such a problem tip their hand by saying the much prefer a solution that won’t work that will give them total control over the economy, freedom of travel, housing and food production, over a solution that would work that would leave freedom and capitalism untouched.

          Personally I think even if the most dire scenarios do come to fruition that going back to a climate that was the norm 4 million years ago when earth thrived with a huge diversity of life and many of our modern species including humans evolved wouldn’t be anything to fear.

          1. Yeah, your average climate alarmist isn’t even aware that during the last bout of glaciation, we got frighteningly close to the CO2 level at which C3 photosynthesis just shuts down, and most plants die.

            During most of the evolutionary history of Earth, CO2 levels were in the thousands of parts per billion. Those are the sorts of levels green plants evolved for. But over geological time, those very same plants have been sequestering carbon by the gigaton, in coal seams and the like, and the amount of it available for the biosphere has been gradually dropping.

            CO2 got down to about 180ppb before humans started burning that sequestered carbon and returning it to the biosphere. By about 100 ppb, most plants will DIE of CO2 starvation. (The C4 grasses are a bit more hardy in that respect, which is why you see grass all over the place: It’s not suffering as badly from CO2 starvation.)

            Humans have narrowly averted a planetary catastrophe which would have drastically reduced the diversity of life! And we’ve barely made a dent in the long hard job of returning CO2 levels to where plants can thrive again and life dominates the planet.

            It’s amazing how comprehensively wrong the climate alarmists are, when you think about it.

            1. They’re not wrong, it’s just another example of white privilege.

              The people screaming the loudest about climate change are all white Northern Europeans who insist that they keep the globe at Northern European weather levels rather than let it warm to the norms that our black bodies evolved for.

              Increase the average temperatures by the highest of the predicted ranges by the IPCC and all that happens is that white Europeans lose their monopolies and the people of color of the global south are able to re-spread across the globe like we did before Northern European hegemony oppressed us.

              #PoesLaw

        3. No, the political branches could. They decided not to.

          Look, you’re just not constitutionally entitled to get your way on policy. Not even if you think it’s really important that you prevail.

          Somebody else wants a different policy, they also think it’s really important that you NOT get what you want.

          The political branches, NOT the judiciary, exist exactly to decide which of you gets what you want. (Maybe neither.) The judiciary’s job in this is just to make sure the rules are followed, and non of the rules say, “Sebastian Cremmington gets what he wants if he asserts that it’s really important.

        4. The fact you believe you can solve climate change shows your scientific ignorance. Climates have always changed. MWP was warmer than today. Believing the baseline of the LIA as normal climate is a ludicrous scientific proposition pushed by kids and authoritarians.

          1. ” MWP was warmer than today”

            I am inclined to believe the data currently available shows the MWP was warmer, thought the correct answer is maybe – The resolution of the paleo proxies is too low to reach a definitive conclusion. There a lot of proxies which show a much warmer MWP, though they have been underweighted or excluded from the climate reconstruction studies.

            That being said, the current warming period and the MWP are both mere molehills in comparison to the rest of the holecene period.
            The tunnel vision of co2 being the main driver of the current warming has seriously retarded the scientific understanding of our climate.

          2. So this is the new fallback position on the right, eh? ‘It’s happening but not worth trying to do anything about it.’

            It’s not great, but pure denial is getting less and less viable.

            1. I wouldn’t call that my fallback position, it’s been my position all along. Obviously the Earth is warming, (Even if they’re exagerating the degree of it.) NYC isn’t a mile deep under ice.

              Now, prove that warming is bad.

              1. Alas, I do not recall your particular comments back in like 2015, but I can tell you it’s very much not been the position of the conservative commenters here on Adler’s global warming threads until the past two or three years.

            2. It is the consensus of individuals and scientists who have looked at the paleo reconstructions objectively.

              Objectively – is the operative word – with the tunnel vision displayed by the activists (including the activists scientists).

              1. WITHOUT the tunnel vision displayed by the activists (including the activists scientists). reply is to correct typo

              2. It’s the consensus of the sample of scientists you’ve decided to believe.

                Seems legit.

    2. Someone might do something if you guys graduated from this emotional mumbo-jumbo and moved on to being factual.

    3. There are still other options.

  2. “While the Supreme Court found standing in Massachusetts, it was careful to stress both that state plaintiffs, as states, were entitled to a “special solicitude” in the standing analysis and that the existence of a procedural right to challenge the EPA’s failure to act lessened the normal requirements of immediacy and redressability”

    Not withstanding that SCOTUS standing analysis was flawed in Mass v EPA

  3. The majority opinion was far to kind to the plaintiffs as well, cited much of the facts asserted by plaintiffs as not just undisputed, but conclusive. If the position of the United States was that the plaintiffs do not have standing, of course they are not going to put in evidence to create disputes of fact for summary judgment and judgment on the pleadings.

    And to be clear, I like Professor Adler believe that climate change is a problem and needs to be redressed. But that belief does not preclude the fact that there are crazy advocates for addressing climate change, and based on the factual excerpts cited in the opinion, plaintiffs utilized the craziest of the crazy (on that side, at least).

    1. “…plaintiffs utilized the craziest of the crazy…”

      50% of the judges in this case thought that the case should go forward. What does that say about the judiciary?

      1. 9 out of 10 judges use Crest toothpaste.

        1. Crest toothpaste causes global climate warming change.
          I have spoken.

        2. I just wish they’d stay at a Holiday Inn Express more often. Like, permanently.

      2. It says we need 5 more years of Trump appointing judges?

      3. They really should have a seminar for judges when they are confirmed and 2 things need to be stressed:
        1. Your job is to make sure that controversies are decided by the law, not by what you think is right.

        2. If you think you you have influence on policy or politics then you should resign and run for office.

        And maybe also 3. People respect your knowledge of the law, but nobody gives a squat what you think about anything else.

  4. What would these self-righteous kids propose? Abandon fossil fuels wholesale and move to solar/wind which are currently unreliable and constitute a minute portion of energy production depsite massive subsidies? Would they be willing to ramp up nuclear?

    I find no reason to assume that catastrophe is imminent given the track record of climate predictions. Id analogize climatologists to economists, we should take into account their prognostications but keep in mind the intractable problem that is making precise predictions in an open complex system.

    Assuming that catastrophe is imminent:
    1) it matters little if the problem is man-made we’d have to deal with it anyhow.
    2)Our own reductions (which I believe have occurred over the past few years thanks to fracking) would be more than swamped out by China which is ramping up coal despite fronting as if they were committed to reducing Co2

    1. Yes, that’s it. Three choices: do nothing; do something 50-100 years from now when more is known; remake society and the economy immediately and kill billions of people due to lack of energy.

      I know which one is guaranteed to kill billions, and if any court actually tried to mandate that, they’d be reversed, impeached, and/or lynched.

  5. What’s the deal with these judges sucking so much dick here? They just can’t help themselves celebrating these kids and passing off their arguments as facts while completely ignoring the sheer idiocy of effectively suing the American taxpayer for disagreeing with them on global warming as an issue.

    1. My guess is that, since they were dismissing the case, they looked at the plaintiff’s claims in the most favorable light legally possible.

      I.E. ‘Even assuming everything you say is true, you have no case.’

      It seems like it would stand up legally better than scrutinizing every claim, picking it apart, and then dismissing it. In that case someone higher up in the appeals process could find some flaw in your scrutiny to work with. Here, they don’t have that opportunity.

    2. That’s why the left has been using children as fronts lately: A lot of adults are afraid to just say to kids: “You’re an idiot, go away and come back in ten or twenty years when you’re going to at least be an idiot with some experience and perspective.”

      Getting tired of the left using kids as sock puppets because most adults don’t want to make kids cry.

      1. It’s a conspiracy, I tell you, Brett.

        But you’ve found us out.

        1. It’s not a conspiracy, it’s just too blatant to keep a secret.

          The headline originally conceived as a parody but actually adopted for many stories in the NYT says it all:
          World to end next week. Women and children hardest hit.

        2. If you couldn’t tell bernard, you were the second part of his statement.

  6. While there are many grounds on which these claims could have been dismissed, it seems redressability is the easiest. The requested relief (an injunction directing the US government to take certain actions) would not fix anything since climate change is a global issue. If the US economy stopped using fossil fuels tomorrow (set aside the calamity that would cause), climate change would not be affected in the least. For that reason, the requested injunction would not be “substantially likely to redress their injuries.”

    Certainly even Judge Staton would recognize that a federal district court lacks the ability to order every other country in the world to re-examine their own use of fossil fuels.

    1. He could issue a writ of mandamus demanding that the US go to war to compel them to do that. 😉

  7. The dissent also fails on suggesting there is actually evidence that the constitutional harm she identifies will or is being violated. I’m not a climate change denier. It is undoubtedly happening and humans are undoubtedly a major cause. I think some of the doomsday projections are not scientifically based, but it is serious enough that we need to do something about it. With that said even the biggest doomsday projections don’t have the world being obliterated or all land submerged in water. A right to a perpetual nation does not mean a right to a nation with perpetually same conditions. There is zero evidence or even argument from event the strongest of advocates to suggest the country will cease to exist.

  8. TLDR version: They petitioned the wrong branch of government.

  9. Sweet Jesus!
    The courts are publishing dissents that just say “the courts can override both the executive and legislative branches because we say these things are so”??
    How long until the majority says so?

    Welcome to the revolution.

    1. I’m beginning to think every federal court should have a lamp post installed outside, with a coil of hemp rope inside a glass box labeled, “Break glass in case of judicial over-reach.”

      It would concentrate the judges’ minds a bit.

      1. A new definition of hanging judge, no doubt. 🙂

      2. No doubt you do.

        1. The ‘intellectuals’ on the right sure seem eager to go in for violence at the drop of a hat these days.

      3. Tar and feathers would be more effective. No need to make any martyrs.

  10. If someone wants to claim the climate will be uninhabitable by humans, shouldn’t they have to present evidence that human habitation will be impossible?

    Where would they compare their future predicted climate to? Climate in the Sudan is very harsh, but the people there do ok. Lots of people live in places where the surface is below mean sea level. So, much like the rest of climate change hype, it’s hard to reconcile “uninhabitable by humans” with reality, even if you believe the predictions.

  11. The plaintiff and the dissenting judge have an interesting theory to support their case. Under that, I and those similarly situated with me (those of use who expect to live a couple more decades), should be able to argue that the existence of contraception and the availability of abortion laws would provide injury for me (us) in our old age. If there are not youngsters, who is going to provide the labor to support our retirement, and who will be available to provide our care?

    With legal contraception and abortion it is theoretically possible that no child will ever be born, and that possibility provides an injury to me (and to everyone who plans to live more than a few more years.) That is an obvious injury, therefore we have standing, and it is certainly within the power of the courts (taking their argument at face value) for the courts to prevent the injury by outlawing abortion and contraception.

    It often helps to apply a theory to a new fact pattern to see if it makes sense. I have a hunch the plaintiffs, their attorneys and the dissenting judge would not support outlawing abortion and contraception.

    1. Abortion policy is a judicial construction and is unlikely to be corrected by petitioning to that branch of the government.

      There is no redress when the court violates your rights.

  12. It’s pretty clear what should have happened.

    The judges should have looked at current climate change patterns, current world wide CO2 emissions by country, and the long term damage, and done the only thing that could provide an immediate substantial drop in worldwide CO2 emissions.

    Operation Nuka-Cola.

  13. As the Ninth Circuit once explained in better days, the federal court system was “established at public expense to try issues, not to play games.” United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981). The fact that this took more than a couple of pages to resolve and didn’t result in sanctions for the plaintiffs’ attorneys is a disgrace.

  14. They emphatically do not rightfully fear climate change. They’ve been carefully indoctrinated to believe that mankind controls the climate, not that flaming yellow ball about 93 million miles away.

    There’s also ample evidence that a warmer Earth is better for humans and life of all kind.

    Runaway greenhouse effect is a fraud.

  15. I think the dissent makes an important point that there is a: constitutional right to “the perpetuity of the Republic”.

    If Bernie or Warren wins the Presidency that would seem to give standing and grounds to set aside the election.

  16. Wait I thought the world was supposed to have ended in 2010, or half of the US was going to be underwater, or we were going to run out of oil, or wait…none of that happened. Could it be all that so-called “climate change” is nothing more then a sad rhetorical scare device used to forward an extremist left wing agenda?

    1. Nope. It was 2012. Institute for Human Continuity said so. The world ended 8 years ago. You’re just in denial.

  17. Since the U.S. reduced carbon emissions 10% over the past decade, while China, India, and the rest of the developing world doubled theirs, I think the kids sued the wrong folks. They should head for the World Court and sue the heck out of China, etc.

    1. Maybe we tarriff the shit out of China until they reduce emissions….oh wait 🙂

  18. I hope we never get there, but is there not some level of direness, immediacy, and certainty which would legitimize an Article III court’s requiring or preventing actions by the other branches because nothing else would be consistent with the Constitution’s reasons for being?
    A person who has read and agreed with the Preamble, yet answers the above question with a categorical No, has it seems to me lost the meaning amid the details.

    1. No, a person who has read and agreed with the Preamble, yet answers the above question with a categorical “No”, has not lost sight of who’s assigned the decision as to the level of direness, immediacy, and certainty requiring actions. And that it’s not the judiciary.

  19. Assume the climate change alarmists are right. The practical problem is that the only ways to permanently fix climate change would also crash the economy, and no politician on either side of the aisle is going to crash the economy for the benefit of people who won’t even be born for several more decades. So we have a situation in which we are faced with an existential crisis that is simply politically impossible to fix.

    On those facts, should the judiciary intervene? Probably not, and too bad for the next generation. The best one can hope for is that our evolutionary successors will do a better job with the planet than we did.

    By the way, a word to climate change deniers: The parallels between this and the tobacco companies insisting that there is no link between smoking and cancer for decades after there was a contrary scientific consensus are uncanny. This is not a dispute in which there is a division among scientists; this is a division in which the scientists are pretty much all on the same side and it’s only corporate money that’s propping up the other side.

    1. Well, if Judhe Staton’s factual allegations are correct, clean energy will not solve the problem

      We would need to trigger a nuclear winter.

      The Cold and the Dark: The World After Nuclear War http://www.amazon.com/exec/obidos/ASIN/0393302415/reasonmagazinea-20/

      Curiously, this simple solution is being ignored.

    2. As I recall, the tobacco company’s legal stance, in lawsuits against it, was instead that the link between smoking and cancer was so obvious and well known that smokers were voluntarily assuming the risk by smoking.

      This was a very successful defense until a group of lawyers convinced some states to outlaw use of that defense, by promising those states a share of their winnings.

      1. That may be what they are saying today. It is not what they were saying in the 1969s.

    3. Where is all of this corporate money propping up the scientists pointing out errors and deceit in the published literature?

      I see this claim regularly, yet never have I actually seen a single dollar funding it directly, let alone compared to the billions spent on proponents of the end of the world.

  20. In earlier days of the republic the courts were more cautious about exerting power over the other branches, for fear that their underlying impotence would be disclosed when they were ignored. For example, the Supreme Court in Mississippi v. Johnson (1866) refused to issue an injunction ordering the President to do something. They said:

    “The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed. …Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. …we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

    The federal judiciary’s power and authority will take a big hit the first time it issues an order that is ignored by the other branches. The Supreme Court won’t let that happen.

  21. If judges are authorized to intervene whenever they feel the Republic is in danger, why bother with these silly and useless ceremonies of holding elections, passing laws, making administrative decisions, etc.?

    Why not admit that the elected branches are a sort of House of Lords, a sort of ceremonial debating society, that deals only with safe, unimportant things?

    1. ReaderY, I agree with your main point that the courts do not have a blank check to fix what the political branches can’t or won’t. However, in fairness, the political branches frequently suffer from political paralysis because the founders, in their wisdom, gave us a system in which 30% of the voters can veto what the other 70% want thanks to anti-democratic institutions like the electoral college and two senators per state regardless of population. So long as that’s the case, there will be political paralysis.

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