New Climate Change Lawsuits Threaten Regulation From the Bench


Todd Young

Despite claims that a new federal court case in California will be the “first time” climate science will be on trial, it isn’t. And what’s at stake in the new case is not only whether climate change science is “valid,” but also the limits of judicial power to make up new law — not in one, but two cases in the Ninth Circuit.

U.S. District Court Judge William Alsup, based in San Francisco, has ordered a “tutorial” on climate science in advance of a March 21 court case brought by the cities of San Francisco and Oakland against major oil companies for violations of California’s state public nuisance law, which has not been tested in federal court.

But the subject of climate science and the disputed methods on which the Obama-era U.S. Environmental Protection Agency based its ultimately unconstitutional regulations have seen the inside of two of the highest courtrooms in America. The issue was specifically and hotly contested by more than two dozen states, dozens of trade associations, and the constitutional public interest law movement including my organization challenging the EPA’s so-called “climate change” greenhouse gas regulations.

The end result: a 2014 U.S. Supreme Court decision tossing the regulations.

But before that judgment, the U.S. Court of Appeals for the District of Columbia in 2012 issued a lengthy decision on the merits of the controversial science itself, describing its findings as a “brief primer on greenhouse gases.” The three-judge appellate panel wound itself around the intricacies of carbon dioxide and “pollutant” measurement, inserting such gems into its decision as this: “Using the carbon dioxide equivalent equation, for example, a mixture of X amount of nitrous oxide and Y amount of sulfur hexafluoride is expressed as Z amount of CO2e.” It’s fair to say the second-highest court in America put climate science analysis on trial.

The United States Supreme Court soundly crushed the Obama-era greenhouse gas regulations as executive overreach beyond congressional authorization and a plain violation of the separation of powers. In the majority opinion, Justice Antonin Scalia wrote, “EPA’s interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” and, “Were we to recognize the authority claimed by EPA . . . we would deal a severe blow to the Constitution’s separation of powers.” This is an unambiguous rejection of Executive overreach and endorsement of separation of powers between executive, legislative and judicial branches. Keep this in mind as we look at the new California case and its judge.

Fast forward to the public nuisance lawsuit filed in federal court in California. Judge Alsup made news in January by issuing a nationwide injunction ordering the Trump administration to continue renewing DACA applications, despite widespread contention that the Obama program issued by Executive Order is an unconstitutional overreach into powers reserved for Congress (which it is). Sound familiar

Lest we conclude that Alsup will likewise take free rein with climate science and the controversial state public nuisance law on which the current lawsuit is based, which he may, judicial decisions coming out of the Ninth Circuit are famously overturned at a stunning rate. Why? As Supreme Court Justice Samuel Alito held in a 5-3 decision in February, “The Ninth Circuit misapplied the canon of constitutional avoidance . . . The Ninth Circuit’s interpretations of the provisions at issue . . . are implausible.” This is judicial shorthand for “judges shouldn’t make decisions based on the outcome they desire,” political or otherwise.

As we warned last year in Newsmax, “Federal Court in Oregon Legislates Against Fossil Fuels from Bench,” a lawsuit brought by a radical environmentalist consortium called Our Children’s Trust on behalf of a group of children and young adults is likewise moving forward, thanks to the Ninth Circuit Court of Appeals decision this week. We called it the most dangerous litigation in America because two federal judges recognized a brand new fundamental right to “a climate system capable of sustaining human life,” now endorsed by the Ninth Circuit. This radically shifts the burden to the Executive branch to prove that it did not infringe on this new constitutional right, as the plaintiffs are demanding that the Executive branch make law by eliminating all use of fossil fuels — a lawmaking job reserved for Congress.

The ironic timing of the two cases, both in the Ninth Circuit and both overlapping in their probing claims, is not accidental. At stake is whether the judicial branch of government can successfully create new law based on desired outcomes, rather than as the law dictates. As we wrote here, the Founders warned of this kind of judicial overreach, which they called ‘tyranny.’ It may take the Supreme Court to once again reaffirm separation of powers. This is regulation by judicial fiat.



Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general.

This article was originally published on NewsMax. To read the original, please click here.