The Stupidest Litigation In The Country Reaches The Ninth Circuit
/There is quite a lot of stupid litigation in this country. So how does the Manhattan Contrarian know which of thousands of candidates is actually the very stupidest of all? Well, let me tell you about my candidate, and then you judge whether it is even remotely possible that there could be any case even stupider.
The case in question goes by the name Kelsey Cascadia Rose Juliana v. United States, et al. It was brought in 2015 in the Federal District Court in Eugene, Oregon. (The documents in the case are available from the federal Public Access system, which unfortunately is behind a paywall. I'm picking up the cost to read some of the documents on behalf of all of my readers!) The Amended Complaint contains a very lengthy description of Ms. Juliana, of which the following are not necessarily the most ridiculous portions:
Kelsey is 19 years old and was born and raised in Oregon, the state where she hopes to work, grow food, recreate, have a family, and raise children. During the fall of 2014, Kelsey walked 1,600 miles from Nebraska to Washington D.C. in the Great March for Climate Action to raise awareness about the climate crisis. Kelsey is harmed by Defendants’ actions and inactions regarding carbon pollution and the resulting climate destabilization and ocean acidification. . . . Kelsey spends time along the Oregon coast in places like Yachats and Florence and enjoys playing on the beach, tidepooling, and observing unique marine animals. . . . The current and projected drought and lack of snow caused by Defendants are already harming all of the places Kelsey enjoys visiting, as well as her drinking water, and her food sources—including wild salmon. . . . Defendants have caused psychological and emotional harm to Kelsey as a result of her fear of a changing climate, her knowledge of the impacts that will occur in her lifetime, and her knowledge that Defendants are continuing to cause harms that threaten her life and wellbeing.
Ms. Juliana is just one of twenty-one individual plaintiffs, all under the age of 21; plus there is an environmental group calling itself "Earth Guardians." Oh, and then there's another plaintiff known as "Future Generations." Wouldn't want to leave them out!
That business about drought and lack of snow is what they wrote in 2015. I guess it sounded good as something to cause "psychological and emotional harm" to poor Ms. Juliana. Of course, today, two years later, exactly zero of the State of Oregon is experiencing a drought of any kind, even the most mild. And then, do you wonder, as I do, how Ms. Juliana regularly gets from Eugene, over the coastal mountain range and down to the ocean to "play on the beach, tidepool, and observe unique marine animals"? It's about 60 miles. Maybe on her bicycle?
Anyway, by now I'm sure you have guessed that this is the case where a group of minor children have sued seeking to get a court injunction to force the U.S. government to end the use of fossil fuels in this country. The claim supposedly arises directly under the U.S. Constitution, particularly the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment:
This action is brought pursuant to the United States Constitution. It is authorized by Article III, Section 2, which extends the federal judicial power to all cases arising in equity under the Constitution. . . . That grant of equitable jurisdiction requires Article III courts to apply the underlying principles of the Constitution to new circumstances unforeseen by the framers, such as the irreversible destruction of the natural heritage of our whole nation. An actual controversy has arisen and exists between Plaintiffs and Defendants because Defendants have placed Plaintiffs in a dangerous situation, continue to infringe upon Plaintiffs’ constitutional rights, and have abrogated their duty of care to ensure Plaintiffs’ reasonable safety, among other violations of law.
And the relief they seek? Hey, let's go big! Among some nine different requests, each more overreaching than the next, we find this gem:
Order Defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend . . .
We're not just going to force them to "phase out" all fossil fuel use, but we'll also make them suck the CO2 out of the air! Might there be any technical or cost issues in trying to remove billions of tons of a 0.04% trace gas from the earth's atmosphere? Not our problem!
And now we get to the response of the Obama administration to this case. It would be a very reasonable inference that somebody was scheming to lose. In 2015 they made a halfhearted motion to dismiss the case, entirely directed to technical legal issues like what is known as "standing" and "justiciability." After sitting on the motion for a while, the court denied that motion in mid-2016. Whereupon the government had to serve what is known as an "Answer," responding paragraph by paragraph to the allegations of the Complaint. Now the Complaint here contains one after another of preposterous and unverified allegations of predicted future disaster -- every horrible imaginable, from sea level rise to drought to flood (both at the same time? why not?) to hurricane and other storms to searing temperatures to disease to starvation to literally anything else you can think of. None of it has actually happened yet? So what -- we just know that it will!
The government filed the Answer on January 13, 3017. Yes, that was exactly one week before the inauguration of the new President. And in the Answer, the outgoing administration admitted one after another of the ridiculous predictions of impending disaster. There are way too many to give you more than just a taste. Here is the first sentence of paragraph 1 of the Amended Complaint:
For over fifty years, the United States of America1 has known that carbon dioxide (“CO2”) pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival.
And here is our genius government's "Answer":
With respect to the first sentence, Federal Defendants admit that for over fifty years some officials and persons employed by the federal government have been aware of a growing body of scientific research concerning the effects of fossil fuel emissions on atmospheric concentrations of CO2—including that increased concentrations of atmospheric CO2 could cause measurable long-lasting changes to the global climate, resulting in an array of severe deleterious effects to human beings, which will worsen over time.
Or consider paragraph 150 of the Amended Complaint:
During the last decade, Defendants have repeatedly stated that allowing “business as usual” CO2 emissions will imperil future generations with dangerous and unacceptable economic, social, and environmental risks. As Defendants have acknowledged, the use of fossil fuels is a major source of these emissions, placing our nation on an increasingly costly, insecure, and environmentally dangerous path.
And your government's "Answer":
Federal Defendants admit the allegations in this paragraph [150].
Over to you, President Trump! When the Trump administration got its act together after a few months, it decided to go to the Ninth Circuit Court of Appeals to try to get what's called a "writ of mandamus," directing the District Court to put an end to the madness. Unfortunately, a writ of mandamus is a very unusual remedy for the denial of a motion to dismiss, let alone that the government was by this time way beyond the normal deadline for asking for such relief.
The mandamus effort then came up for argument yesterday in the Court of Appeals, before Judges Thomas, Berzon and Kozinski. Here is a link where you can watch the full argument, which is about an hour. It's fair to say that Judge Kozinski gave the plaintiff's lawyer an appropriately hard time about the ridiculousness of her case. However, the other two judges (Clinton appointees in both cases) were clearly indicating that they didn't think mandamus was an appropriate remedy, and Kozinski did not signal disagreement on that point. It is likely that this case, with or without a Kozinski dissent, will now go back to the District Court for discovery and trial. The stupidest litigation in the country, marching on!
Assuming that is right, the Trump administration now must withdraw the preposterous government "Answer" and start over. This will be a real test of competence. They need to fight on every point, assuming that they are going to lose in the District Court and probably in the Ninth Circuit, and only prevail in the Supreme Court several years from now.
At least the new people cannot possibly be as incompetent as the prior administration in selling the people of the United States down the river in service of the latest progressive fad. (The alternative hypothesis is that the prior administration was not incompetent, but actually hated the United States and everything it stands for, and was intentionally seeking to destroy the economy and impoverish the people.) If you ever have the feeling that Donald Trump is not your type of guy and you would rather that he was not President, just keep in mind what Barack Obama and his administration did in throwing the defense of this case and trying to hand to one activist judge in Oregon the ability to order the de-industrialization of our economy and the energy impoverishment of the people.