Climate Policy by Judicial Decree

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Democrats know they can’t banish fossil fuels or impose carbon taxes democratically, so the Biden Administration is preparing a backup plan: use courts to impose the anti-carbon policies by decree.

Six years ago, progressive plaintiffs claimed to have discovered in the Constitution’s penumbra a right to a “stable climate system” free from “dangerous levels of anthropogenic CO2.” The U.S. government, they argued in a federal lawsuit, has failed to safeguard the youngest generation’s “fundamental constitutional rights to life, liberty, and property” and “essential public trust resources.”

The plaintiffs in Juliana v. U.S. sought a court order that required the federal government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” The Obama and Trump Justice Departments opposed the lawsuit. The Constitution nowhere mentions climate.

The plaintiffs also lacked standing to sue because they hadn’t suffered an injury that could be traced to the U.S. government and which courts could redress. Yet a federal judge refused to dismiss the lawsuit. After four years of litigation, a Ninth Circuit Court of Appeals panel held the plaintiffs lacked standing and ordered the district court to dismiss the case.

The panel noted the plaintiffs’ injunction request “call[ed] for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world” and their demands could be met only “by the People’s ‘elected representatives, rather than by federal judges interpreting the basic charter of government for the entire country.’”

But the plaintiffs then sought to amend their complaint to keep the case alive and have prodded the Biden Administration to negotiate a settlement to impose their demands. Lo, federal Judge

Ann Aiken

last month ordered the Justice Department to engage in settlement talks with the plaintiffs with a conference scheduled for June 23.

There’s no reason to surrender since the U.S. government already won the case. That’s why 17 state Attorneys General are requesting to intervene in the lawsuit since they don’t trust that the Biden Justice Department won’t reach a “collusive settlement” with the progressive plaintiffs.

The Obama Administration often used this “sue and settle” strategy to bypass Congress. Some 137 new Clean Air Act regulations were imposed as a result of legal settlements with green groups, including tighter ozone limits and new methane emissions standards. The Obama Administration’s climate ambitions were modest compared to President Biden’s, which include eliminating all carbon emissions from power generation by 2035 and from the U.S. economy by 2050.

These goals not coincidentally align with those of the plaintiffs and would require re-engineering the U.S. economy, as the Ninth Circuit noted. Steel manufacturers would have to employ yet-to-be-developed carbon capture technology, fossil fuels would have to be purged from the grid, and beef production minimized.

The Administration can’t mandate any of this under existing law or pass it through Congress. A consent decree imposed by a federal judge, however, would carry the force of law. It would also be profoundly anti-democratic, but that is where the climate left is these days. It will impose its will by any means possible.

Potomac Watch: Despite what progressives like Alexandria Ocasio-Cortez may think, climate legislation is not infrastructure legislation. Images: Getty Images Composite: Mark Kelly

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