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Juliana v. United States: A Disappointing Result

But with a lesson to be learned: we need to focus on the rhetoric of remedies, not causes

It is always better to win a major, complicated, cutting-edge lawsuit (or any lawsuit) than to lose it.  But even in losing there are things to be learned.  As in the case of Juliana v. United States, the recently dismissed climate lawsuit by a group of young people in the United States.

The Juliana lawsuit was brought by 21 young citizens, an environmental organization, and a “representative of future generations” (Dr. James Hansen) against the President of the United States, the US and numerous federal agencies.  The claims were based on the government’s continuing actions of permitting, authorizing, and subsidizing fossil fuel use despite clear knowledge of the risks to climate change from such uses.  The plaintiffs asserted injuries for psychological harm, impairment of recreational interests, various medical conditions, and damage to property.  The legal basis for the claims included violations of various provisions under the Fifth, Ninth, and Fourteen Amendments to the US constitution.

The case was before the United States Court of Appeals for the Ninth Circuit, on appeal from a California US District Court.  Courts of Appeals are the federal courts below the US Supreme Court.

The sole issue before the court on appeal was whether the plaintiffs had “standing to sue.”  There had not been any trial or testimony in the lower District Court, but only procedural disputes.  The issue of “standing” is typically an early issue that has to be resolved before the court will proceed to trial.

Under US federal law, whether plaintiffs have standing, or are entitled to bring the particular claims against the specific defendants turns on whether plaintiffs have: (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision.

The 9th Circuit had no problems finding that the first two requirements were met by plaintiffs since they had the requisite injuries and had sufficiently alleged, with supporting factual and expert documentation, that their injuries were caused, at least in part, by the government’s support for fossil fuel usage.

The sticking point for two of the three judges on the 9th Circuit Panel was whether the claimed injuries are “redressable.”  For purposes of this argument, the court assumed, without deciding, that the government had deprived plaintiffs of a substantive constitutional right to “a climate system capable of sustaining human life.”  At 21.

But the question still remained whether there was anything the courts could do to redress these grievances.

The plaintiffs requested, as a remedy, an injunction requiring the federal government, both Executive and Congressional, to cease permitting, authorizing and subsidizing fossil fuel use, and to prepare a plan subject to judicial approval to reduce harmful emissions.

The court found that such remedies were beyond the pale of a federal court’s power.  The court found that the remedy was too sweeping, that it would require fundamental transformation of the country’s energy system, that federal courts would have to monitor and supervise all the elements of the remedy over decades, and at the end of the day, as the plaintiffs admitted, the requested relief would not alone solve global climate change.  As a result the court found there was a lack of standing and the case had to be dismissed.

A dissenting opinion by 1 of the 3 judges argued that there was sufficient case law to support an extensive participation by the federal courts in long, drawn-out remedies (e.g., in school desegregation cases).  The dissent also argued that the case presented by the plaintiffs alleged that climate change was now irreversible and as a nation the US is on the brink of no return, so any relief, no matter how incomplete, was better than none.

While the majority opinion dismissed the lawsuit, the court did so “reluctantly,” as it spent much of its opening on the facts on climate change alleged by Plaintiffs, which were largely accepted by the court.  It found that the “extensive” record, with “copious expert” evidence established that the “unprecedented rise stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.” At 14.  Moreover, it concluded that: “Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.”  At 15.  And, “The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.”  At 15-16.

The Intergovernmental Panel on Climate Change (IPCC) could not put the case for climate action better.

Since the case was dismissed because of the court’s lack power to redress the injuries, it may not have been necessary to go over the realities of climate change.  But the court did so, and indeed concluded by suggesting that:

The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. Diss. at 45–46, 49–50, 57–61. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.  At 11.

So the majority, case-dismissing court has sent a clear signal that climate denial arguments will not pass muster in that court.   The Ninth Circuit court is widely regarded as the most liberal of the thirteen Appeals Courts, and, to its credit, often evokes tirades from Trump.  It is widely respected and other courts likely will follow this lead.   In any case, it will be increasingly more difficult for courts to embrace climate denialism.

While the court’s adoption of the experts served the significant purpose of supporting climate action, yet the experts may have undermined their own case. The submissions by the plaintiffs’ experts convinced the court of the dire straits the earth is in.  Indeed the majority began its opinion, probably as only the 9th Circuit could, by citing a popular 1960s song, Eve of Destruction, to describe the current status of the climate.  The experts argued, in part, that any corrective actions less than a total transformation of the economy or energy markets would be ineffective.

They described the current status of climate breakdown so dramatically that they may have helped convince the court that there was nothing the court could do to alleviate the crisis and so it was not redressable, at least not by the federal court.

Perhaps the lesson to be learned from the Juliana case is that we have been largely successful in winning the rhetorical battle on how bad things are.  Now we need to concentrate on the rhetoric of what can be done.

While the facts and law are obviously very different, we do note that in contrast to the Ninth Circuit US court, the Supreme Court of the Netherlands held, in the Urgenda case, that the Dutch government is required to do its part in addressing the threat of dangerous climate change.  The Dutch court ordered the government to reduce GHG emissions by at least 25% by 2020, a limited form of relief that was requested by the plaintiffs.

Sources:

Juliana vs. United States, No. 18-36082 (9th Circuit, January 17, 2020). bit.ly/2u4mDwn

The State of the Netherlands and Stichting Urgenda (20 Dec 2019). bit.ly/2TYdH6a

Climate Action for Others

Oh, yeh, for us too: music concerts, internet, and online shopping with home delivery

 

Often we exhort others — fossil fuel and all other industries, large and medium businesses, institutions, and politicians — to do more to counter climate breakdown.  As for individual actions, some, if not many, argue that individual action is nice but hardly sufficient to counter the unfolding climate breakdown, and that only international agreements will work.

There is no question that international actions are necessary.  But that does not nullify the push to have individuals to take what actions they can.   First, if those engaged in the larger conversations and arguments ignore their own carbon footprint, they undermine their “global” arguments.  Second, if individuals who are living their life outside the bubble of international negotiations are encouraged to take what actions they can, they more likely will support what is unfolding on the larger stage, and also push their local politicians to support regional, national and international climate actions.  Otherwise they can dismiss their individual responsibilities on the grounds that it is up to others to resolve this overwhelming problem.

Finally, in 2019 we have seen that collective street actions and protests have generated widespread support and pressure on local and national governments while international forums are ineffectual, and at times regressive, thanks to autocratic-led governments like the United States, Russia, Australia, Brazil, Hungary and Poland.

So individual action is much needed.

The focus on individual action often is about switching to more efficient light bulbs, avoiding plastic bottles, and walking or riding public transport instead of driving private cars — all most useful steps.  But there are other more challenging individual actions that require broader behavioral changes.   Here are a few of those challenging behaviors, applicable especially to privileged people.

Music Concerts

With a nod of deep appreciation to Greta Thunberg, “flight shame,” or “flygskam” in Sweden, is increasingly undercutting air travel because of its heavy carbon emissions.   While many of us rely on air travel from time to time, and need to avoid even that usage as much as possible, others rely on air travel as a significant part of their life style or work experiences.

One instance is the music business where many, if not most, successful musicians, whether from the world of rock or classical music, fly to a lot to concerts they arrange.  Some musicians perform close to 100 concerts a year, around the world, to reach their audiences.  Some are beginning to acknowledge the impact on greenhouse gas (GHG) emissions from these actions.

Arranging a global tour for a rock or classical group, or individuals, requires use of concert halls and large venues, like sports stadiums.  Each facility will be responsible for GHG emissions, in construction and operation, and these have to be calculated.  Audiences have to travel, from near or far.  The performers have to travel around the country or world.

The question is to what extent do they “have to” travel like this.

 

 

 

 

 

 

Some performers are offsetting concerts with music written as a reaction to climate breakdown, and donating proceeds of any sales or performance of that music to environmental projects.  Some are substituting train for air travel.  Several are working with the Tyndall Centre for Climate Change Research to assess the impacts from concerts and to find solutions.

Some are re-organising their tours to concentrate their concerts in space and time to reduce travel.

While the music business is dealing with its GHG emissions, so too should the global climate negotiations business as it periodically brings together thousands of people from far distances to one spot.

We do need to acknowledge that coming together to experience music can be thrilling, and networking with others trying to address climate breakdown can be very useful.  And exploring other cultures at far distances in person can be enlightening, and advance global relations.  At the same time, we need to think about alternatives, including telecommunications.

The Internet

You used the internet to get access to this magazine and to read this BLOG.  If you think that is unusual behavior, just count the number of days you did not use the internet in the past week, month, year.  Probably not too many, if any.  Indeed many are connected to the internet from the moment they wake until they go to sleep.  The explosion of live streaming has deepened that reliance.

And all this connectedness comes at a heavy cost, not just for your personal budget but also for your personal GHG footprint.  “Streaming one hour of Netflik a week requires more electricity, annually, than the yearly output of two new refrigerators.”  Lozano, in Sources.  The internet accounts for 10% of global electricity demand, and it is estimated that the internet will use 20% of global electricity by 2030, producing more carbon than any country except China, India, and the United States.  Moreover, half the world’s population has not yet logged on the internet, but they are coming soon.

 

 

 

 

 

At the same time that the internet is draining more electricity, and producing more carbon, it is becoming more vulnerable to the very climate breakdown to which it is contributing.  Data centres require cooling and energy, and these costs will rise in hotter environments.  Thousands of miles of conduits, tubes and wires will be destroyed by salt from water from coastal flooding, and rare earth metals necessary for the internet will become rarer and more costly with climate changes.  As faster 5G wireless networks expand, along with 4k and 8k video, clouds and streaming, GHG emissions will ride along with this growth.  It has been suggested that the total electricity usage of the internet could reach 50% of global usage.

Some are promising to create a satellite-distributed internet, or files on “manufactured DNA,” whatever that means.  But as usual, such technology may be available only to the well-off.

Some propose that we need local control over internet usage, not unlike local control over energy supplies with locally owned wind and solar power.  For example, when superstorm Hurricane Sandy struck New York City, Goldman Sachs protected its headquarters, in a vulnerable spot in lower Manhattan, with thousands of sandbags and backup power generators.  A short ferry ride away, a section of Brooklyn, Red Hook, lost power for weeks.  However, a section of Red Hook happened to be the site of a pilot program where a foundation had created a local intranet system, called a MESH network, built on rooftops of homes.  That system, with its inherent limitations, remained in operation during the power loss.

While system-wide advances develop in reducing the GHGs from the internet, you can certainly shut off your connections whenever possible.

Buying Online with Home Delivery

More than 1.5 million packages are delivered every day in New York City.  The systems behind these deliveries also deliver gridlock, pollution, and safety risks.  And it is clear that online shopping and home delivery of all these purchases is only going to increase.  As one CEO of a delivery company noted, “Seven years ago, thinking that you’d be getting cheeseburgers delivered by the millions was kind of crazy, right?”  That’s right!  Ingram, in Sources.

Besides cheeseburgers, we also get groceries, household goods, furniture — almost anything that can fit in a box.

Besides the convenience of all this stuff showing up on our doorstep or in our lobby, the deliveries are creating havoc on our streets.  Cities were not designed to handle all this local traffic, much of which represents the “last mile” of delivery, that portion of the entire delivery from distribution or fulfillment centres to doorstep.  The “last mile” can account for up to 28% of delivery costs.

Warehouses that can store goods for this last mile, generally within the city, are now required also within or on the edge of cities.  The trend now is for building vertical, multifloor warehouses because of the cost of land within large cities.

There just is not enough room in most cities for street access and parking to accommodate all the vans and trucks needed for these deliveries.

 

 

Lisle Illinois Library system

 

While city planners are struggling with the design of new spaces and re-design of existing spaces, others are searching for short-term fixes.  Some are experimenting with delivery by drones, cargo bikes and electric scooters.  Others are requiring customers to meet drivers at the curb instead of the front door, or requiring customers to buy online but pick up in a store, which becomes a sort of a mini-fulfillment centre.  Presumably customers would pick up the order and take it home by walking, bike, cab, subway or bus.

Conclusion

Regardless of what people do in the global negotiations or what other individuals do, there is a lot of room for each of us to do things that will help reduce our GHG or carbon footprints.  And to help save the planet.

 

Sources

Jasper Parrott, “Classical music must play its part in tackling the climate crisis,” The Guardian (20 Dec 2019). bit.ly/2EMst7k

Laura Foster, “Climate Change:  Plan to cut carbon emissions from concerts,” BBC News (28 Nov 2019). bbc.in/2MH5b7k

Kevin Lozano, “Can the Internet Survive Climate Change?” The New Republic (18 Dec 2019). bit.ly/2ZzptER

David Ingram, “Delivery dilemma: Americans are ordering more, but the U.S. can only handle so much:  The delivery crunch is a year-round phenomenon that’s causing people to rethink the design of American cities,” NBC News (23 Dec 2019). nbcnews.to/2rpzNml

Adam Robinson, “What Is Last Mile Logistics & Why Are More Shippers Looking at This Transportation Function?” Cerasis  https://bit.ly/355pUrF

What’s the Word from the UN Emissions Gap Report 2019

“Bleak.”

Just in time for the next climate negotiations, to be held in Madrid in December 2019, the UN Environment Programme has published its Emissions Gap Report 2019.  The report provides the current assessment of scientific studies on current and estimated future greenhouse gas (GHG) emissions and compares these with the emission levels permissible for the world to progress on a least-cost pathway to achieve the goals of the Paris Agreement. This difference between “where we are likely to be and where we need to be” has become known as the ‘emissions gap’.  This is the 10th such report from the UN and over those 10 years carbon dioxide emission have risen 11 percent.

So much for the global commitment to reduce GHG emissions.

 

 

 

 

 

 

 

 

 

Based on this current rate of emissions, we can expect a rise of 3.2 degrees Celsius (5.7 degrees Fahrenheit) of warming by 2100 over the average temperature at the start of the industrial age, when GHG emissions started to change the atmosphere in significant ways.

That 3.2°C rise is more than double the targeted rise of 1.5°C in this time frame.  With this increased rise, impacts will be catastrophic, as has been documented by almost every climate breakdown study over the past 30 years.   The impacts include extreme weather events, which are becoming all too familiar; the accelerated melting of glaciers; and, the swelling of seas.  As a result, the lives of billions of people are and will be at risk.

The Gap report shows how recent developments are aggravating these dire results.  For example, some countries, including Canada and Norway, are promoting reduced GHG emissions at home while they expand production of fossil fuels for sale abroad.  Other reports have shown that the popularity of sport utility vehicles (S.U.V.s), which burn more gasoline than regular cars, wipes out much of the saving of fossil fuels from the slowly expanding electric vehicle market.

Given the ongoing expansion of GHG emissions, it will now be necessary for emissions to decline by 7.6% every year between 2020 and 2030 in order to make it possible to avoid some of those catastrophic impacts.  Yet we see a 1.5% increase every year over past ten years.

 

 

 

 

 

 

 

 

 

While the Report paints a bleak picture, it does offer some hope.  It points out that the picture would be even darker if countries had not taken steps to curb their GHG emissions over the past several decades.    Renewable energy sources, particularly wind and solar, are rapidly growing.  And young people across the globe are actively engaged in public demonstrations about climate breakdown.

It remains hard to be optimistic in light of the decline of international cooperation, thanks to the Trump-Putin alliance and other autocrats across the globe.  And let’s not forget that much of the control over those nasty fossil fuels remains with rather self-serving, greedy nation states.

Bleak, indeed.

 

Sources:

UN Environment Programme, Emissions Gap Report 2019  bit.ly/37JRwVP

Somini Sengupta, “‘Bleak’ U.N. Report on a Planet in Peril Looms Over New Climate Talks,” The New York Times (27 Nov 2019).   https://nyti.ms/33rbNfw

Umair Irfan, “UN: The world has backed itself into a treacherous corner on climate change,” Vox (27 Nov 2019). bit.ly/2sgcds6

Think You’re Safe from Climate Impacts?

Think again.

If you do not live by an ocean or sea or major river, or if you live on high ground, then you might expect to escape climate impacts from rising seas or flooding.  If you avoid living near a forest or woodlands, then you might expect to escape climate impacts from extreme fires.  If you do not live in an area subject to hurricanes, tornadoes or other extreme weather events, then you might expect to avoid climate impacts from these events.

If you do live in a vulnerable area, then you might be able to move, if you’re rich and lucky enough.

All well and good for avoiding direct impacts from climate breakdown.  But then there are those pesky indirect impacts.  For instance, if you live in California it is increasingly likely that you’ll lose your power for stretches of time even if you live far away from areas at risk of fires.

How is that possible?

One of the California utilities, Pacific Gas & Electric (PG&E), provides electricity to about 16 million people across the state.  Under California law, utilities are legally liable for damages that result from fires caused by the negligence of the utility.  Wide-spread and deadly fires over the past few years were started by sparks from power line, and PG&E has been found negligent for failing to maintain those wires and liable for damages, likely exceeding tens of billions of dollars.  The scope of liability is so large that PG&E declared bankruptcy in January 2019.  The state and utility are trying to figure out how to protect people from injuries and properties from being destroyed by fires, and to make sure that everybody has sufficient power at affordable prices.

The fires were started by sparks from power lines but the fires were spread and intensified by weather conditions, namely dry conditions for months which dried out vegetation, brush, and forests, as well as strong winds.  These extreme weather events are, of course, getting more frequent and stronger as a result of climate breakdown.

After another dry summer and the potential for strong winds developing again this fall, several weeks ago the utility shut down part of the power system serving over 800,000 people.  The areas affected include Silicon Valley, which brought the world untold electric gadgets, including iPhones and MacBooks, and which was without power.   The power was turned back on after several days, but over the past week, and continuing, power was shut down again because of the risks from weather.

Some of the almost 1 million people would have the resources to buy gas-fueled generators for their own use, but even those became scarce and expensive and have limited power.   A few have even hired private companies to extinguish fires on their property.  Most people do not have such resources, and had to endure the consequences of the power outage, including no air conditioning.

Recent news report that even LeBron James, the basketball star, and Arnold Schwarzenegger have had to flee their homes.

As one Californian noted, “You don’t expect power to go out”… “But welcome to the Third World country that is America.”

So one can expect such indirect impacts from climate breakdown to proliferate.  And they won’t be confined to the west coast.

On the east coast, a number of years ago, Super Storm Sandy knocked out the infrastructure in New York City, including power substations and subways that affected millions for days and weeks.  Some of the subway systems are still undergoing repairs and disruptions at this moment.

It is going to become increasingly harder to avoid the serious to catastrophic impacts from climate breakdown, regardless  of where you live.   A recent report by the U.S. Army War College on the implications of climate change ominously reported:

“The power grid that serves the United States is aging and continues to operate without a coordinated and significant infrastructure investment. Vulnerabilities exist to electricity-generating power plants, electric transmission infrastructure and distribution system components,” it states.  As a result, the “increased energy requirements” triggered by new weather patterns like extended periods of heat, drought, and cold could eventually overwhelm “an already fragile system.”  See Ahmed below.

As Abrahm Lustgarten notes, “It is easy to ignore climate change in the bosom of the developed world,” but it hits home when your own lights go out in the world’s fifth-largest economy.

 

Sources

Alejandra Borunda, “How climate change primed California’s power shutdown,” National Geographic (10 Oct 2019). on.natgeo.com/2p7Vhm7

Alejandra Borunda, “Are Europe’s Historic Fires Caused By Climate Change?” National Geographic (31 July 2018). on.natgeo.com/2vEBZUX

Phil Willon, Joe Mozingo, Rong-Gong Lin II and Maura Dolan, Los Angeles Times, “California enters uncharted territory: Massive blackouts, historically dangerous wind,” Microsoft News (25 Oct 2019).  bit.ly/36hKh6W

Nafeez Ahmed, “U.S. Military Could Collapse Within 20 Years Due to Climate Change, Report Commissioned By Pentagon Says,” Vice (24 Oct 2019).  bit.ly/2pW57ry

United States Army War College, Implications of Climate Change for the U.S. Army bit.ly/31OjbRl

Abrahm Lustgarten, “Mandaory Blackouts,” The New York Times Sunday Magazine, at 22 (27 Oct 2019).

Are companies capable of developing a social-environmental conscience?

Maybe

Asking such a question would likely have been unthinkable decades ago.  Instead the economist Milton Friedman’s famous essay, “The Social Responsibility of Business is to Increase its Profits,” ruled the boardrooms of corporations and the conversations about the issue.  The prevailing view was that a free market delivered the best goods and services to the public, and created the most wealth for shareholders, who could use their earnings on anything they wanted, including social “causes.”

Today it is a more open question, with an emerging view based on applying “environmental, social and governance” (ESG) criteria to decisions on how to allocate financial investment or apply a business’ resources.

Social issues revolving around race have, of course, become relevant over the past number of decades because of equal rights laws and constitutional equal protections in the US and elsewhere.  Protections against discrimination based on gender have spread widely in many countries.  Local laws in the US that have impinged on these gender protections have generated firm opposition and social action by businesses that refuse to hold conventions or meetings or special programs where such discriminatory local laws have passed.  And individuals have been applying pressure to companies that do not protest such discriminatory laws.

Recently we have seen businesses publically supporting gun control laws in the US, with companies like Walmart adopting policies to not sell certain guns and ammunition.  The CEO of Walmart stated that the company was adopting this policy because of the “the outcry he heard from scores of Americans, calling on him to use his leverage as the leader of the country’s largest retailer to create a model for more responsible gun-selling practices.”  See Sorkin, below.  Of course, it should be noted that one of the recent mass shootings in the US was at a Walmart store in Texas where 22 people were killed.

The other side of this coin reflects the reality that public pressure can work against progressive policies, as when the citizens of some states pressure a local government to allow citizens to carry guns openly in public, including in schools.

Despite the lack of hard, affirmative laws requiring climate action, there are increasing pressures from groups and individual citizens and consumers on companies to acknowledge the serious risks from climate breakdown and to adopt polices and practices that reflect those concerns.

 

 

The recent and on-going public protests by youth groups are reinforcing and broadening these efforts.

And companies have responded by supporting climate actions and policies.  For example, 25 large American companies campaigned against America’s withdrawal from the Paris climate agreement in 2017, and 232 firms worth trillions of dollars have committed to cut carbon emissions in line with the Paris agreement.

The broad corporate support for a shift from fossil fuels to renewable energies is perhaps the clearest expression of this development.  While that shift is encouraging, it has to be recognised that the companies involved are not those in the fossil fuel business, or those dependent on this sector.  Typically the progressive companies are those that sell products or services to the public, which makes them more amenable to public influence and protests.

It also can be noted that the companies supporting climate action, and particularly development of renewable energies, are acting in their self-interests as they recognize the scientific hand-writing on the wall:  the future rests on renewable energy, not fossil fuels.  The companies that adjust to that reality will be more financially secure than those who resist the changing landscape of energy sources.

 

Sources:

Andrew Ross Sorkin, “Walmart’s C.E.O. Steps Into the Gun Debate. Other C.E.O.s Should Follow,” The New York Times ( 5 Sept. 2019). nyti.ms/2lyjosx

Andrew Ross Sorkin, “Profits or Public Interests?” The New York Times (19 Sept. 2019). nyti.ms/2mrVyz7

“I’m from a company, and I’m here to help:  The idea that companies with a sense of purpose could tackle social injustice, climate change and inequality is sweeping through parts of the business world,” The Economist (24 August 2019).

Mark Miller, “Bit by Bit, Socially Conscious Investors Are Influencing 401(k)’s,” The New York Times (29 Sept 2019).   nyti.ms/2niQL3T