Bench Memos

Law & the Courts

‘Groundbreaking’ Means ‘Insane’?

Last week, Oregon federal district judge Ann L. Aiken issued perhaps the most pervasively lunatic ruling I have ever seen. In Juliana v. United States, she denied the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate. As Aiken summarizes the “groundbreaking” lawsuit, plaintiffs in this (what else?) “civil rights action” challenge

decisions [President Obama and some eleven or so federal agencies] have made across a vast set of topics—decisions like whether and to what extent to regulate CO2 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, how much to charge for use of those lands, whether to give tax breaks to the fossil fuel industry, whether to subsidize or directly fund that industry, whether to fund the construction of fossil fuel infrastructure such as natural gas pipelines at home and abroad, whether to permit the export and import of fossil fuels from and to the United States, and whether to authorize new marine coal terminal projects.

Aiken’s 54-page opinion is replete with howlers. A few examples:

1. In considering whether, just maybe, this lawsuit might implicate a “political question” by calling for decisionmaking beyond a court’s competence, Aiken rejects the contention that she would be “making ad hoc policy determinations about how to weigh competing economic and environmental concerns.” All she has to do, she says, is “determine what emissions level would be sufficient to redress [plaintiffs’] injuries. And, no, plaintiffs aren’t asking her to “direct any individual agency to issue or enforce any particular regulation”:

Rather, they ask the Court to declare the United States’ current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions, and use that inventory 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.”

Oh, that’s all? Well, then, please go ahead, Czarina Aiken.

2. On the question of plaintiffs’ standing to sue, Aiken somehow finds that plaintiffs’ alleged injuries are “concrete, particularized, and actual or imminent,” are “fairly traceable” to the agencies’ challenged conduct, and are likely to be redressed by a favorable ruling. She states, for example, that the agencies are responsible for the (alleged) fact that “over the 263 years between 1751 and 2014, the United States produced more than twenty-five percent of global CO2 emissions.” Never mind, among other things, that very few of the defendant agencies existed for most of that time period or had any authority to regulate emissions. Even as she recognizes that redressability “is scientifically complex” and that other actors could cause the same injuries to plaintiffs, she concludes that it is likely that she could provide “meaningful relief.”

3. Supposedly “exercising [her] ‘reasoned judgment,’” Aiken declares that she has “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society” and is therefore a fundamental constitutional right protected by substantive due process.

4. But don’t worry, this isn’t a massive judicial power grab. Instead, Aiken tell us in her closing, this is just what Chief Justice Marshall had in mind in stating in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.” To dismiss plaintiffs’ claims would be to have the judiciary “shrink from its role as a coequal branch of government.”

Most Popular


The Georgia Smear

Back in 2016, when Trump refused to say he’d necessarily accept the result if he lost, we were told that this was a terrible violation of democratic norms. Now, refusing to accept that you lost an election is the highest form of patriotism. Not only are the media and the Left not pressuring Stacey Abrams to ... Read More
PC Culture

The Lonely Mob

Just before the election, an Andrew Gillum intern named Shelby Shoup was arrested and charged with battery after assaulting some college Republicans on the campus of Florida State University. It was rather less exciting than that sounds: She went on a rant about “Nazis” and “fascism” — Gillum’s ... Read More

How Immigration Changes Britain

Almost nothing is discussed as badly in America or Europe as the subject of immigration. And one reason is that it remains almost impossible to have any sensible or rational public discussion of its consequences. Or rather it is eminently possible to have a discussion about the upsides (“diversity,” talent, ... Read More

Sorry, Brian Kemp Still Won

Here was the state of play as of yesterday per the Kemp campaign’s breakdown of publicly available information: As of Saturday, November 10, 2018 (12:00 p.m.) *Information below is public.  Total votes reported: 3,924,658 Kemp: 1,975,162 (50.33%) Abrams: 1,912,383 (48.73%) Metz: ... Read More