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January 29, 2020 (American Thinker) — On a 2-1 vote, the Ninth Circuit Court finally dismissed Juliana v. United States, the lawsuit brought on behalf of child plaintiffs demanding their constitutional right to “a climate system capable of sustaining human life.” The children, and the environmentalist group Our Children's Trust that's using them as lawfare puppets, were demanding a court order compelling the U.S. government to “swiftly phase out fossil-fuel use” and develop and implement “a national plan to restore Earth's energy balance … to stabilize the climate system.” The way William Yeatman at Cato boils it down: “If the plaintiffs had their druthers a single federal district court judge would become, after the president, the most powerful official in the country.”

The majority's opinion (one judge wrote a dissent) correctly recognizes the clear-cut limits the U.S. Constitution places on Article III courts — i.e., “[n]ot every problem posing a threat to the American Experiment can be solved by federal judges … [so] the plaintiffs' case must be made to the political branches or to the electorate at large.”

Dissenting Judge Josephine L. Staton, writing more in the style we've come to expect from activist jurists, believes that those constitutional limits can be ignored, because…well, this is an emergency! 

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

It goes without saying that the government never “bluntly insist[ed]” any such thing. But because of her own unswerving conviction that, short of immediate enactment of the most draconian sacrifices, we're “doomed, doomed, doomed,” Staton can equate unwillingness to decree Green New Deal–like measures with a deliberate intention to obliterate the country. She even tries to fine-tune her asteroid analogy into “a scenario in which the government itself accelerated the asteroid towards the earth before shutting down our defenses.” With the country at the climate tipping point, Staton contends that the courts are empowered to “enforce the most basic structural principle embedded in our system of ordered liberty,” which is “that the Constitution does not condone the Nation's willful destruction.”  

The Juliana majority, regardless of their decision to dismiss the case, also take for granted the imminence of an “environmental apocalypse.” They dismissed the kiddies' lawsuit on the strictly legal issues of standing and the court's inability to grant the requested relief, then wrote they decided only “reluctantly.” In fact, the majority admit they found “beguiling” the plaintiffs' childish ideas about “simply ordering the promulgation of a plan.” According to their opinion, the only problem with decreeing such a sweeping plan (aside from the Constitution) is that:

… it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs' right to a “climate system capable of sustaining human life.” We doubt that any such plan can be supervised or enforced by an Article III court.

In other words, even if an (unfit) Oregon trial judge could order herself superior to both other branches of government and impose her will nationwide, compelling obedience would entail judicial meddling in so many different areas of the nation's political, economic, and social activities that it would be too complex to succeed.

Dissenting Judge Staton scoffs that such complexity would be a barrier to judicial intervention. She notes the far-reaching enforcement mechanisms required to implement the Supreme Court's order to desegregate schools in Brown v. Board of Education, and says “[m]ere complexity” doesn't place an issue beyond the courts' authority to force “constitutional compliance”:

[D]ecelerating from our path toward cataclysm will undoubtedly require “elimination of a variety of obstacles.” Those obstacles may be great in number, novelty, and magnitude, but there is no indication that they are devoid of discernable [sic] standards. Busing mandates, facilities allocation, and district-drawing were all “complex policy decisions” faced by post-Brown trial courts … and I have no doubt that disentangling the government from promotion of fossil fuels will take an equally deft judicial hand.

The “variety of obstacles” she has in mind undoubtedly include the energy sector, modern transportation, and democracy, but whoever said the job of running the country from your judicial bench was going to be easy?  We need only recall the outstanding results wrought by all those “deft judicial hands” who managed busing, district-drawing, and school desegregation in the happy decades of the 1960s and '70s.

Staton barely touches on how the courts are entitled to “step into the shoes of the political branches” except to say it's justified “if those branches walk the Nation over a cliff.”

This is exactly why the Framers of the Constitution placed strict limits on the power of the federal Judiciary. Judicial power going to people's heads is just as real as the threat of the imperial presidency we're forever being warned about. It's probably a greater a threat, because there are so many more mischievous judges to worry about, as seen by the number of nationwide injunctions granted just since Inauguration Day 2017. 

Judge Staton's argument that federal judges are ideally equipped to weigh the “scientific and prudential considerations” needed to commandeer the nation's energy policy falls flat in light of her own manifest credulity on the issue of climate “science.” She believes everything, and questions nothing, of so-called climate experts' highly questionable claims. She states as a matter of fact that the Juliana “Plaintiffs' claims are based on science, specifically, an impending point of no return.” She knows that the day is upon us “when the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between.”

Juliana is only one of a “wave” of climate lawsuits proceeding on the basis “that climate science itself isn't up for debate.” Even when a court gets it right as a matter of law, as happened this time in Juliana, widespread allegations that apocalyptic climate theories are “settled science” have a cumulative effect across the Judicial Branch. It's unavoidable to have judges making factual findings, because it's part of the job description. But ill informed and overreaching judges like Josephine Staton prove that, when it comes to something as critical as energy policy, the complex “scientific and prudential considerations” are best trusted to the American people.

T.R. Clancy looks at the world from Dearborn, Michigan. You can email him at [email protected].

Published with permission from the American Thinker.