Judge Planet and the Planeteers

Printed from: https://newbostonpost.com/2016/04/15/judge-planet-and-the-planeteers/

I thought my capacity for shock at judicial activism was exhausted, but an April 8 decision by a federal judge to allow a group of children to sue the federal government to stop climate change literally caused me to burst out laughing. The Left, of course, is giddy.

Plaintiffs’ complaint – all 100 pages of it – and related pleadings contain the usual litany of climate change alarmists’ dire predictions of catastrophe if the planet warms a little – including allegations that climate change will affect their right to vote and ability to bear children (seriously). They pair those warnings with attacks on the U.S. government for allowing fossil fuel production and consumption to increase.

The gist of their case is that the government violates the Constitution by failing to tax fossil fuels more heavily, allowing drilling on federal land, and facilitating the transport of fossil fuels (for example, by approving the construction of natural gas pipelines). The low gas prices consumers currently pay at the pump, and the relatively low electricity prices our industry enjoys in comparison to its global competitors, are apparently violating the moppets’ constitutional rights.

As relief, plaintiffs’ demands are modest: They ask the court to “[o]rder defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions.”

Oh, is that all?

Those who have given the Constitution even a passing read might be scratching their heads, wondering where it gives courts control over the entire energy economy. Those more familiar with legal history might recall the judiciary’s previous interferences in national economic policy, the now-derided “Lochner era,” and wonder how on Earth (or Gaia) plaintiffs could hope to convince a judge that federal energy policy is subject to judicial control.

Don’t worry, you’re not crazy; the lawsuit is frivolous on its face. Plaintiffs’ claims are explicitly grounded in the same atextual concept of “substantive due process” that underlies Roe v. Wade. That the same constitutional theory is being invoked both to support abortion rights and attack fossil fuel consumption should be confirmation, as if any were needed, that lawyers and judges are just making this stuff up.

The ruling came on a motion by the federal government to have plaintiffs’ complaint dismissed out of hand, before it turns into expensive and time-consuming discovery and a trial. The government reasonably argued that individual plaintiffs cannot seek, through the courts, to seize control over the setting of national economic policy. Rather, where there is an issue – such as, in theory, global climate change – that effects all Americans, it should be settled through the political branches: Congress and the President.

The plaintiff children had an answer to this, which the magistrate judge bought hook, line, and sinker: We are different from other Americans, they argued, because we are children. As the court explained it, the federal government has “‘discounted’ emissions so as to pass on more severe impacts to younger and future generations to allow the present (and older) generations to reap the economic benefits of higher carbon emissions.” In other words, the court should decide an intergenerational dispute between children and their parents over the consumption of natural resources. Again: Oh, is that all?

The court’s theory – if some aspect of our country might be getting worse over time, then “the children” can sue about it – has no logical stopping point and is a recipe for mischief. Worried that the ever spiraling national debt will beggar future generations, in large part to finance benefits for today’s seniors? “The children” can sue for a “national remedial plan to phase out Social Security and Medicare.” Does illegal immigration, which causes wage pressure on entry level jobs, concern you? Have “the children” sue for a “national remedial plan to deport illegal immigrants.” Maybe Donald Trump can team up with “the children” to sue Mexico for an order to build his wall.

Like it or not, we live in a democracy with a written constitution and a separation of powers. Nothing in the Constitution allows a federal judge to decide whether “fossil fuel emissions” should be allowed. Not even at the request of “the children,” particularly children whose biggest regret in their young lives is likely that they did not appear in the creepy Obama children of the corn video.

Kevin P. Martin

Kevin P. Martin

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. You can read his past columns here.