For those who think that the federal courts are a hopeless miasma of insanity, it's time for an update on the Stupidest Litigations in the Country. Things may not be quite as bad as you have thought up to now.
If you have a short memory, let me remind you that in December 2017 and January 2018 the Manhattan Contrarian made two nominations for the illustrious title of "Stupidest Litigation in the Country." In both cases, the nominations went to litigations seeking to get some federal judge to issue a sweeping order of some kind to hinder or stop the use of fossil fuels and thereby save the climate and the planet. The first nomination for the award, made in this post on December 12, 2017, went to the case of Kelly Cascadia Rose Juliana v. United States. That's the case out of Oregon where some 21 minors, mostly teenagers, plus a rather large nameless contingent labeled "future generations," have sued the U.S. government seeking to compel the complete end to the use of all fossil fuels in this country. Hey, they just want to prevent "the irreversible destruction of the natural heritage of our whole nation." What could be more noble than that? Isn't that what the federal courts are for? Nomination number two came just over a month later on January 24, 2018. It went to the cases filed first by a group of California cities, and then followed on January 9 by New York City, seeking massive damages against five major oil companies for the "public nuisance" of producing and selling oil and natural gas.
First round results are now in on the California and New York City cases against the oil majors. On June 27 I reported on the decision the previous day by Judge William Alsup of the Northern District of California, dismissing the two California cases that had come before him. In that post, I made a prediction as to how the New York City case would go:
[T]he New York City case is before a very tough-minded guy named John Keenan -- a Reagan appointee no less -- so I wouldn't be expecting a much different result there.
Sure enough, yesterday Judge Keenan dismissed the New York City case. Given the total absurdity of this litigation, Judge Keenan's opinion makes for remarkably dry reading. To begin with, as this is a motion to dismiss, Keenan accepts as true for purposes of the decision all of the factual allegations of the Complaint, including the usual mantras that greenhouse gas "pollution" in the atmosphere "has led to hotter temperatures, longer and more severe heat waves, extreme precipitation events including heavy downpours, rising sea levels, and other severe and irreversible harms." Actually, none of those things can in fact be demonstrated. But even if they were true, the problem remains that the plaintiffs seek to insert the courts into matters that have been committed -- particularly by the Clean Air Act -- to the political branches:
[T]hese types of “interstate pollution” claims arise under federal common law, and the Clean Air Act displaces claims arising from damages caused by domestic greenhouse gas emissions because Congress has expressly delegated these issues to the EPA. Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.
And then there is the issue that much or even most of the conduct sought to be condemned took place abroad:
The City alleges that “Defendants’ cumulative production of fossil fuels over many years makes each Defendant among the top sources of [greenhouse gas] pollution in the world.” . . . Such claims implicate countless foreign governments and their laws and policies. This type of claim is the subject of international agreements, including—although the United States has expressed its intent to withdraw—the Paris Climate Accords. . . . To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government.
Presumably, it's now on to the Courts of Appeals for these cases. As crazy as many of those courts are (and the Ninth Circuit ranks high in the hierarchies of craziness), I wouldn't expect these cases to get turned around. Even extreme progressive ideologues tend to balk at allowing themselves to be turned into laughingstocks.
But then there's that other nominee for the coveted award, the Juliana case. What's happening there? In that one, the trial judge denied a motion to dismiss, which means that the case is headed to trial. An effort by the Trump Justice Department to stop the trial was denied in the Ninth Circuit (yes, them again) back in April. And now the District Court has scheduled the case for some 50 trial days of evidence, starting October 29!
In its latest move, the Justice Department indicates that it will seek a stay in the Supreme Court if the Ninth Circuit will not grant one. They may want to wait for new Justice Kavanaugh to be seated before going in for that one. So this could be quite a cliffhanger. I'll bet you can't wait to learn that you have a "constitutional right" to a stable climate, or something like that, which of course can be easily vindicated by having the government away your car and your electricity. Believe it or not, there are four justices on the Supreme Court who would very likely support this if and when the matter comes before them.