Terry H. Schwadron
March 28, 2019
Like others, I was struck by hearing President Trump complain about just how much aid continues to go towards disaster relief in Puerto Rico especially on the same day that Sen. Mike Lee, R-UT, rose in the august Senate to perform a 15-minute, unfunny parody of the Green New Deal proposal.
I found it striking because in both cases, the leaders, both Republican in this case, once again were more interested in the political points to be scored in addressing the actual problem at hand, generally described as Climate Change. In both cases, the ridicule and dripping sarcasm came off as uninformed and uncaring of anything but keeping public problems from needing a public solution.
So, to me, these incidents remind us that our leaders — albeit in both parties — are problem-avoiders. Meanwhile, more and more actual decision-making is being left to the courts — the very judges whose jobs are seen as growing more politicized, whose confirmation is tied up in partisan angling, and who clearly must have all the scientific sophistication as, say, you and me.
Whatever you feel about the best approaches to dealing with climate change, past law precedents may not be the best guide to practical steps to forestall global warming, relocation, migration and rising seas.
About Puerto Rico, where we all saw the devastation prompted by hurricanes of increasing force resulting in part from warming seas, the president was arguing that $91 billion in rebuilding costs are too much . Maybe he’s right about the cost — $29 billion went to Texas, for example, but the leader thing to do would be to balance rebuilding costs against investments in forestalling warming. Limiting aid to food stamps does neither, and reflects uncaring or worse.
In the Senate, for Lee to mock the intent of the still developing Green New Deal as anything but a statement of aspiration was inane; for Senate Majority Leader Mike McConnell to force a too-early vote was to offer ridicule in lieu of leadership. This kind of political byplay reflects exactly why our health care discussion, for example, or even the remaining Russia questions, can’t emerge into the light of rationality.
So, what is happening with climate control beside the dedication of a whole generation of young people threatening to leave school on Fridays to remind us that there is a problem, and the valient effort of individual cities, states and private entities to create local responses?
The leadership is moving to the courts, of all places.
A federal court decision proved surprising in this last week by saying the government had failed to adequately take into account the effects of climate change in leasing public land in Wyoming for oil and gas drilling.
The decision by the District Court for the District of Columbia was actually aimed at the Obama administration, but could also threaten to President Trump’s agenda to quickly expand oil and gas drilling and coal mining across public lands and waters.
In essence, the court ruling is a road mapthat could be used to challenge hundreds of Trump administration leases. Practically speaking, the decision may simply turn into an awareness speed bump towards more drilling, but to me, it shows something else: Effective governing, effective handling of public policies like seeking Climate Change are a lot more complicated than mottos and slogans (includingGreen New Deal) allow.
It also underscores the degree to which we are turning to courtsto set policy. Several groups and individuals around the United States are going to court to try to do what the Trump administration has so far declined to do in confronting the causes and effects of global warming.
In this case, Judge Rudolph Contreras ruled that the Obama-era plan by the Interior Department’s Bureau of Land Management to lease several thousand acres of land for drilling in Wyoming had erred because the agency was legally required to consider the climate impact of all such lease sales for fossil fuel development.
“This is the first court ruling that specifically tears apart the Interior Department’s failure to take into account the climate change of impact on drilling, on a national scale,” Jeremy Nichols, the climate change and energy program director for WildEarth Guardians told The New York Times.
Under the National Environmental Policy Act of 1970, federal agencies are required to consider and quantify the effect of the possible planet-warming emissions associated with the fossil fuels to be extracted from the sales of such leases. Already, that law requires the federal government to consider the on-site environmental effects of oil and gas drilling, such as water pollution and the effects on plants and animals of road construction.
The Bureau of Land Management protested that it “would be required to identify any past, present, or reasonably foreseeable greenhouse-emitting projects worldwide,” an “impossible” scope of analysis. Judge Contreras wrote that the agency was correct in that the law “does not require the impossible.” But he wrote, “In short, BLM did not adequately quantify the climate change impacts of oil and gas leasing.”
The Times reported that in general, the Trump administration’s proposed lease sales for oil and gas drilling have included less climate impact analysis than the Obama-era ones that were the focus of this Wyoming decision.
More generally, quietly, states and counties have moved a good portion of Climate Change policy-making to the courts.
In California, two counties and a city recently sued 37 fossil fuel companies, seeking funds to cover the costs of dealing with a warming world. In Oregon there is a federal lawsuit brought on behalf of young people. More than a dozen state attorneys general have sued to block Trump administration moves to roll back environmental regulations.
Efforts in the United States are part of a wave of litigation around the world, including a 2015 decision in which a court in the Netherlands ordered the Dutch government to toughen its climate policies. A 2017 report from the United Nations Environment Program found nearly 900 climate litigation suits in more than 20 countries. In Switzerland, a group of nearly 800 older women known as Senior Women for Climate Protection have sued their government over climate change.
Most lawsuits in the United States looking to take on Climate Change have not fared well. have until now gone nowhere. In 2011, the Supreme Court threw out a case filed by eight states and New York City against electric power producers. A lawsuit brought by inhabitants of Kivalina, Alaska, against fossil fuel companies over the diminished buffer of sea ice that had protected the town was dismissed by a federal judge in 2009. A federal appeals court and the Supreme Court declined to reinstate the case.
Still, it is interesting to see that it is the courthouse, not the White House, where the action is happening. Determining the “how” of policy in an increasingly murky legal — and international — area is complicated and slow.