The environmental problems we face are deep-rooted and widespread. They can be solved only by a na-tional effort embracing sound, coordinated planning and effective follow-through that reaches into every community in the land. Improving our surroundings is necessarily the business of us all.
- Richard Nixon
In an act reminiscent of Luther and the church door, Joe Manchin (D-WV) wrote in the Washington Post that he would not vote to change the Senate filibuster rule nor was he keen on using the budget reconciliation process as the vehicle for enacting President Biden’s $2.4 trillion infrastructure plan—much of which is about decarbonizing the economy.
Manchin, like Biden, is an old school politician—where back-in-the-day loyalties were more to the nation than the party. In his marmish manner, Manchin believes refusing to eliminate the filibuster and voting against budget reconciliation will force Republicans and Democrats to work through their differences in a collegially combative sort of way—"just like it used to be.”
We have met the enemy, and they is us[i].
The headlines scream--Senate shatters record with the longest vote in history as Democrats nego-tiated the $1.9 trillion COVID-19 relief bill. What they don’t tell you is who—beyond the usual cast of Republicans—the Democrats negotiated until the wee hours of the morning to bring the President’s pandemic relief bill to the Senate floor for a vote and passage along party lines.
Senate Republicans did what they could to stall a vote on the relief act. Ron Johnson (R-WI) went so far as to require the entirety of the bill’s nearly 650 pages read into the record. It took Senate clerks 11 hours to complete what everyone acknowledged to be a useless task.
Johnson, a staunch Trump ally, has been previously criticized for claiming the deadly January attack on the US Capitol was the work of leftists posing as Trump supporters. The delaying tac-tics of Johnson and other Republican senators, e.g., flooding the debate with 422 amendments, were to be expected.
What wasn’t anticipated, however, were the negotiations needed to convince Senator Joe Manchin (D-WV) to cast his vote with the 47 other Democrats and two independents who were ready to pass the legislation.
[A] big-game trophy decision will be announced next week, but I will be very hard-pressed to change my mind that this horror show in any way helps conservation of Elephants or any other animal.
— Donald J. Trump November 19, 2017
Back in the day, in Capital City, you could tell Democrats by their wearing brown shoes with blue suits and Republicans by their (figuratively) eating their own. Things have changed. These days Democrats have a much better fashion sense.
Like presidents before him, Donald Trump used his executive powers to issue pardons to those he felt were unfairly prosecuted, given jail sentences out of line for the crime committed, who he believed to be repentant or at least politically useful to him. I will admit there were some in the pile of pardons that I would have a tough time justifying their early release or cleansing their records.
Sheriff Joe pops immediately to mind. Joseph Arpaio, the former sheriff of Maricopa County, Arizona. Joe was convicted of contempt of court for refusing to stop traffic patrols that targeted immigrants. He faced a maximum six-month prison term but was pardoned before sentencing. There’s something about sworn officers of the law abusing their power and taking it out on anyone they have it in for because of their skin color or political affiliation.
Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system
capable of sustaining human life is fundamental to a free and ordered society.
- US District Judge Ann Aiken[i]
More than five years ago, 21 youths ranging in age from 8 to 19 asked a federal court to declare a habitable environment a protected right under the US Constitution. Early on. Juliana v. US was often reported with a wink and a nod giving the impression it was a feel-good human-interest story about kids. Nothing could’ve been further from the truth.
As it survived one legal challenge after another, the case came to be recognized for what it could be--the most important environmental law case of all time. One equal in stature to Brown v. Board of Education (school desegregation), Roe v. Wade (a woman’s right to an abortion), and Obergefell v. Hodges (the right of men and women to marry those they love even if of the same sex).
The Juliana plaintiffs have accused the federal government of violating their constitutional rights to a safe and habitable environment. They base their allegations on the government creating and maintaining a national energy system powered by fossil fuels long after it knew of the damaging consequences to the health and welfare of all Americans and on the nation’s natural resources. It’s a charge not unlike the one used in the tobacco cases of the 1990s and the damage lawsuits now being brought by state and local governments against oil companies.
The environmental trial of the century now looks as if it is not meant to be.
A little more than a year ago, a divided three-judge panel of the Ninth Circuit Court of Appeals ruled the Juliana plaintiffs didn’t have standing, i.e., the right, to pursue their case in federal court. The ruling was based on the majority’s opinion there was nothing the court(s) could do to redress the legitimate harms they had suffered:
Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government. (emphasis added)
As has been their wont, the plaintiffs and their attorneys refused to take “no” for an answer. They filed a petition for an en banc hearing in which 11 of the judges on the 9th Circuit Appellate bench would reconsider their arguments and hopefully grant the plaintiffs standing to have their constitutional claims heard and decided by a court of law.
Days ago, the 9th US Circuit Court of Appeals denied the youths’ petition to reconsider the three-judge panel’s January 2020 ruling. The attorneys at Our Children’s Trust and the 21 plaintiffs are again refusing to take “no” for an answer. They have announced their intention to petition the US Supreme Court (SCOTUS) in hopes of being granted the legal right to have their case heard.
Notwithstanding over five and a half years of hearings, the Juliana plaintiffs have yet to be granted the standing to sue the federal government for its failures to protect the environment and its support of fossil fuels. In essence, the game is yet to be afoot.
A president—even one with Biden’s commitment to addressing climate change—can’t meet the demands of the Juliana plaintiffs through executive orders.
A lot has changed since the Juliana plaintiffs and their attorneys at Our Children’s’ Trust first walked into a federal courtroom. Consider, for example, that the federal defendant in the case has changed three times since September 2015.
Initially, the Obama administration was charged with violating the youths’ alleged constit-utional right to a safe and habitable environment. For the past four years, it was Trump and company they faced in court; and now, of course, it is the newly installed Biden administration that’s on the hook to respond to their charges.
As different as these administrations may be, they all agree it is not in the executive branch’s interest to lose the Juliana case and for reasons much like those that have led the courts to deny the plaintiffs the standing to sue.
Before a plaintiff is allowed to pursue a remedy in federal court, they must first establish they have the right, i.e., the standing, to seek the court’s assistance. Standing is granted based on the answers to three questions:
All questions must be answered in the affirmative—two out of three won’t cut it.
The three-judge panel reluctantly denied the Juliana youths standing. Why reluctantly? Because they understand climate change to be the problem the plaintiffs took pains to document. Although far from fulsome, even the Trump administration accepted the youths’ claims of the seriousness of Earth’s warming—not just to current generations but to those yet to be born.
The Juliana plaintiffs, the courts, and the federal government part ways on the third leg of the standing stool--the ability to redress the recognized harms. To be sure, the scale of the requested remedy is part of the court’s reluctance.
Petitioning SCOTUS is not without significant risk for the entire climate community.
The plaintiffs are asking a federal court to order the executive branch of government to undertake a massive reordering of the economy to achieve the magnitude of greenhouse gas reductions that science says is required to keep on the right side of the 1.5 degree Celsius threshold. A threshold beyond which much of the damage, e.g., a second great extinction and large reductions in arable lands that threaten food security, cannot be undone.
Readers having trouble conceiving what’s needed to keep temperatures below 1.5 degrees Celsius are encouraged to think of the Green New Deal or President Biden’s proposed $2 trillion climate strategy. A court’s ordering the federal executive branch to accomplish a retooling of the US economy of such magnitude wouldn’t get us there.
A president—even one with Biden’s commitment to address climate change—can’t meet the demands of the Juliana plaintiffs solely through executive orders. There are practical, political, and legal limits to what any presidential administration can accomplish through executive action.
Funding the transition is one of them. As the Trump administration found, there are legal problems with a nation’s chief executive using funds Congress appropriates for one thing on another. The Constitution’s separation of powers means a president can’t order Congress to do anything.
Even as they pertain to the executive branch, one president’s directives can be rescinded by a successor as easily as they were initially issued. Practices that are hardly conducive to bringing the nation back from the brink of a climate catastrophe with programs and policies like Biden’s climate defense proposals.
In its purest form, the question being debated in Juliana is whether the matter is a question of law or politics. Both judges and presidents have argued the issue of a sustainable and habitable environment is political—leaving it up to Congress, the president, and voters to answer.
What’s the harm of asking?
The Juliana plaintiffs and their attorneys have a choice to make. Do they put hands on hips to end the jam or ask the US Supreme Court to review the latest appellate court decision—hoping finally to be granted standing to pursue their case at the trial court level?
As I’ve already mentioned, things have changed since the Juliana plaintiffs first walked into the federal district court for Oregon. The greatest of these—greater even than changes in admin-istrations--and the one that poses a substantial risk to the climate action community is the decidedly current conservative composition of the US Supreme Court.
The risk associated with the high court reviewing the case is that they may also choose to use it as an opportunity to reconsider the Massachusetts v. EPA decision. The case established both the right of EPA to regulate greenhouse gas emissions and of a state to challenge the federal government’s failure to do so under the Clean Air Act (Act).
Legal experts worry that conservative justices could use Juliana as an opportunity to limit the standing of both citizens and states to sue the federal government under the Act. A possibility that Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law, has called a nontrivial risk. A risk that others agree could have damaging consequences on future climate cases.
The Massachusetts case was a five to four decision largely along liberal/conservative lines. Justice Kennedy was the deciding vote. Justice Kavanaugh now fills Kennedy’s seat on the high court bench.
Chief Justice Roberts and Justice Scalia were two of the four dissenters. Scalia took issue with the majority’s dismissing EPA’s determination that it lacked authority under the Act. His replacement on the Court is Justice Gorsuch. Robert’s dissenting opinion was specific to stan-ding and the ability of the courts to redress climate-related harms.
This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts.
It has always been that whatever happened in Juliana it would have an impact beyond the case itself. A finding for the plaintiffs would offer the Constitution’s protection not just to the 21 youths but to the nation—its people and its natural resources[ii]. However, even without that finding the Juliana plaintiffs have already made a significant contribution to the climate cause.
They have focused public attention on the issue of Earth’s warming framing it as a gen-erational issue—a theme that resonates with older generations despite their political leanings. The case has also spawned other suits both within and without US borders.
Of course, it is up to the youths and their attorneys to decide whether they have scored enough victories over the past five-plus years to now walk away with no regrets. They’ve more than earned the right to make a final federal appeal.
Whether the transition to a low-carbon economy is a legal or political question, the answer is what it has always been—the working together of legislative and executive branches of governments. The time is too short, and the problem too great to have the branches pulling in opposite directions.
[i] Aiken is the trial judge in the Juliana case. Her decision to grant standing to the youthful plaintiffs is what the appellate courts, including SCOTUS, have been dickering over.
[ii] The public trust doctrine holds that the government must preserve natural resources for public use.
Lead image: courtesy of Our Children's Trust
This is the first in an occasional series of articles on electric vehicles. The series will address issues of technological readiness, the policies needed to help shape the market, and the character e of the 21st-century “auto” industry. It will conclude with a discussion of special purpose acquisition companies (SPAC) and how stock market investors are responding to the future of electric vehicles.
While the Trump administration was fiddling with the auto fuel efficiency standards of the Obama administration, auto manufacturers in the US and around the world were designing, manufacturing, and selling 21st century electrified vehicles (EVs). A fact President Trump and his cabal were content to ignore.
Now that Trump has left the building, the federal government can be expected to work in consort--rather than at cross-purposes—with the US auto industry. There’s much to be done, including building out the infrastructure required for wide-spread deployment, training workers, and shaping markets. It will prove a heavy lift.
A cry for survival comes from the planet itself.
A cry that can’t be any more desperate or any more clear.
President Joseph R. Biden
Following the election of Donald Trump, I wrote it was mourning in America. I knew with near certainty that climate policy in the Trump era would be nothing less than catastrophic. He did not disappoint.
Following Joe Biden’s inauguration, it is also morning in America. I know with near certainty that climate policy in the Biden era will be nothing less than spectacular when compared not only to Trump but to President Obama and others who’ve held the position in the modern era.
Trump’s climate legacy is written in the rollback or substantial weakening of 200 or more environmental protections. Everything climate-related felt Trump’s blade from auto and truck fuel efficiencies and emissions to whether there’s any possible benefit—social or economic—attributable to slowing the rate of Earth’s warming or protecting the nation’s streams and rivers from chemical discharges.
Climate politics has taken a 180-degree turn in favor of federal action thanks to the voters of Georgia. The Democrats’ surprising double win in the Peach State’s runoff elections has turned the US Senate from red to blue—or more accurately blue-ish.
With both the House and Senate in Democratic hands, it becomes possible for the incoming Biden administration and the Democrats in Congress to move quickly on a wide range of climate-related matters. Had the Senate remained in Republican control, Majority Leader McConnell (R-KY) would have continued playing the Grim Reaper, making good on his vow to keep climate defense measures from ever landing on the Senate floor or the president’s desk.
Rebuilding and repairing federal programs and regulatory schemes needed to combat climate change effectively are themselves daunting tasks. More daunting still is the resistance the Biden administration will encounter in its efforts to work with Congress to enact in 2021…legislation that would put the nation on an irreversible path to achieve economy-wide net-zero emissions no later than 2050.
The Democrats’ 2020 electoral hat trick does not give climate activists carte blanche in terms of policies and programs able to make it through Congress and onto President Biden for signature—even now with a slightly Democratic Senate.
Once Senators-elect Warnock and Ossoff are sworn in, the upper chamber will be evenly divided 50/50 with tie votes to be broken by the Vice President Harris. It assumes that the 50 Democrats will vote in lockstep with each other. As much as I would like to think that possible, decades in Washington have made me more realistic—often to my chagrin.
Blue Dog Senators like Joe Manchin (D-WV) cannot be expected to vote 100 percent of the time along the same lines as Bernie Sanders (I-VT). Chuck Schumer (D-NY), the new Majority Leader, is going to have exercise a strong hand to keep his caucus in-line.
Manchin has already exhibited his hesitancy to follow along. He was a “No” vote on the Demo-crats’ attempt to raise the second round of pandemic checks to $2000, rather than the $600 that passed. The Senator has four more years on his current term and he represents a solidly red state.
I certainly wouldn’t be surprised if there are times when moderate Republican Senators like Collins (ME) or Romney (UT) or Murkowski (AK) cross the aisle in one direction as Manchin does the other. It’s important to keep in mind that Vice President Harris can only vote in the event of a tie.
Speaker Pelosi has only a four-vote majority in the House. Progressive and moderates will find themselves at odds over issues like climate change and healthcare. Biden, Pelosi, and House Majority Whip Clyburn (SC) are old school moderates, which means conflicts with the progres-sives are inevitable. The House too has its Blue Dogs.
Hanging over the House of Representatives, as always, is the prospect of having to run again in two years. Although a third of the Senate will be running in the midterms, all 435 members of the House will be—are already—back on the hustings and Biden hasn’t even taken the oath of office.
The midterms, as I’ll discuss in a moment, are going to be looked at not only by the Democrats. Republicans believe 2022 will be their time to strike to take back the House if not Congress. Although history is on their side, Donald Trump may have thrown spanner into the works. The Republican Party is pulling itself apart in the wake of the insurrection.
Everything the Biden administration and the 117th Congress will debate and decide takes place against a political backdrop. In the following paragraphs, I endeavor to provide readers with an appreciation of today’s politics.
Whatever else might happen, Democratic control of Congress and the White House means an end to the Trump-era assaults and guarantees open debate on Capitol Hill of critically needed responses to climate change. It also means something will get done.
Numbers can be deceiving—seeing red is not the same as being red.
Biden bested Clinton’s 2016 popular vote by over four million and bettered Trump’s 2020 total by nearly seven million. Notwithstanding such substantial differences, Biden’s Electoral Col-lege-count was identical to Trump’s 306 to 232.
The lesson here is one of geography. Where a presidential candidate wins is as critical to suc-cess as the number of votes received.
President-Elect Biden received seven million votes (51.4 percent) more than Trump. The actual difference between the two candidates, however, was 103,900 votes cast in three states. Had Trump taken from Biden 11,800 votes in Georgia, 10,457 in Arizona, and 81,660 in Pennsylvania, he would have won a total of 278 electoral votes and another four years in office.
The narrow margins of victory in the 2016 and 2020 presidential races should make Repub-licans and Democrats nervous about their presidential candidates’ staying power. Democrats, in particular, should be worried.
According to Alan Abramowitz, an Emory University political scientist,
…the Electoral College has shifted from advantaging Democrats to disadvantaging Democrats. A Democratic candidate must now win the national popular vote by a much larger margin in order to assure a victory in the electoral vote.
The other oddity of Biden’s victory was his failure to increase the number of Democrats in Congress. Known as the coattail effect, a successful first-term president traditionally brings with him a romp of representatives and senators of his own party him into the winner’s circle.
Figure 1 shows that Biden is coming into office besting only President Kennedy in having the weakest House of Representative coattails of any president since FDR in 1932.
Figure 2 reflects how Biden compares to other presidents elected during a time of crisis, e.g., economic depressions, recessions, and wars.
I would note that the pickup of the two Senate seats in Georgia had much to do with Trump’s crude and illegal tactics to get Georgia’s Republican Governor and Secretary of State to help him “find” 12,000 more votes. His denigration of the voting system and persistent belly-aching about how the national election was stolen from him kept Republican voters from turning out in the needed numbers.
It is not to take anything away from Senators-Elect Ossoff and Warnock’s extraordinary efforts, the multiple progressive groups with boots on the ground, or the donors of the $500 million that paid However, the 12,000 votes Biden beat Trump by, and the narrowness of the Senate victories hardly suggest that Georgia has become a reliably Democratic state.
Biden, Ossoff, and Warnock all ran as moderate Democrats. When it comes time to propose and vote on a federal climate defense plan, their moderateness will be in full view.
Time is of the essence
Under the best of circumstances doing all that’s necessary to put the nation inextricably on a path to achieve economy-wide net-zero emissions no later than the 2022 midterm elections promises to be a heavy lift—possibly too heavy. Note that I’m giving Biden and Congress an extra year compared to the President-Elect’s climate goal of 2021.
History is not on the side of a sitting president’s party in midterm elections. Since World War II, an incumbent president’s party has lost an average of 26 House seats and four Senate seats two years into their terms.
The Center for Politics at the University of Virginia believes the Democrats have the best chance of adding to their Senate and House numbers in the 2022 midterms. Thirty-three Senate and 435 House seats will be up for grabs in those elections.
Two years can be a lifetime in politics. Moreover, the 2022 midterms will be the first federal elections impacted by decennial reapportionment and redistricting based on the 2020 cen-sus. In many states, congressional districts are drawn by their legislatures. According to Ballot-pedia, 38 states—15 Democratic and 23 Republican—are ruled by a government trifecta.
A trifecta is when one political party holds the governorship and majorities in both chambers of the legislature. (Figure 3) The percent of Americans living in a Republican trifecta state is 42 percent, 37 percent are in a Democratic state, and 22 percent in a divided government state.
The 2020 census will bring about changes in the number of congressional districts in each state. New York appears fated to lose two House seats. Pennsylvania, Ohio, West Virginia, Mich-igan, Ohio, Minnesota, Illinois, and California all stand to lose one spot.
The total number of districts will remain the same. The loss of one state, therefore, is the gain for another. Texas looks to be the biggest winner gaining three seats. Florida looks to gain two seats, with North Carolina, Arizona, Colorado, Oregon, and Montana each gaining an additional House member.
Population moves are being impacted by various factors, including relocations for new jobs, the pandemic, cost of living, lifestyle, and climate change, e.g., forest fires. The pandemic has shown remote working is a viable alternative to an office for many in the workforce.
New York City lost over 300,000 residents in 2020. Most aren’t expected to return. Many are moving to states like Tennessee, South Carolina, and Arkansas. It’s too early to tell whether northern Democrats are moving in the numbers required to change future election outcomes. However, I suspect it will just be a matter of time before out-migration from northern cities impacts the politics of receiving states.
In today’s hyper-partisan environment, partisan redistricting is likely to become the new normal. Recent gerrymandering decisions by the US Supreme Court have opened the way for that to happen.
The US Supreme Court has now ruled that partisan gerrymandering is a political question beyond the reach of federal courts. The 5 to 4 decision was along conservative-liberal lines. Chief Justice Roberts wrote for the conservative majority:
Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.
With the addition of Justice Coney Barrett, the high court now leans 6 to 3 in favor of the conservatives.
Justin Levitt, an election law professor at Loyola Law School, believes redistricting is now in Mad Max territory where the rule is there are no rules. (Figure 4) Because there are more Republican than Democratic legislatures, it will likely appear that red states are more unfair than blue. The truth is otherwise.
Redistricting outcomes bear watching. The balance of power in the states is another aspect of Biden’s having no coattails. A winning presidential candidate should reasonably be expected to bring along down-ballot members of his own party at every level. The two changes that did occur due to the November elections gave the Republicans trifecta status in Montana and New Hampshire. Both states previously had divided governments.
There are a lot of questions still to be answered. Will Democratic progressives and moderates in Congress be able to strike a balance when it comes to the enactment of climate legislation? Can Democrats and moderate Republicans work together in the post Trump era?
A few days ago, I would have said no. Now that some Republican lawmakers have seen Trump without his clothes there may be opportunities for collective action.
Time will tell—and so will I.
Photo by Andy Feliciotti on Unsplash
After an election in which the country opted for a reset, not a revolution, moderate
Democrats hold the power in the party.
Sullivan and Bade
The momentum of the 2018 Congressional midterm elections in which the Democrats gained 42 seats and regained their majority status in the House of Representatives lost steam in 2020. It had been expected that the 2020 elections would build on the 2018 victories and possibly lead to capturing the Senate.
The anticipated blue wave broke badly, never making it onto Congressional shores. It is destined to profoundly impact the abilities of the Biden White House and Democratic Congres-sional leaders to take the bold steps needed to slow and then reduce net greenhouse gas emissions in the power sector to zero over the next 15 years.
Although the House remains in Democratic hands, fewer hands are doing the holding. The election losses have led to recriminations and heated discussions between moderate and progressive House Democrats. The who’s right/who’s wrong arguments have spilled out into the activist communities—with each faction accusing the other.
Beyond the shock, awe, and recriminations of losing 13 House seats, the narrowed Democratic House majority poses practical strategic difficulties for Speaker Pelosi and the Biden administration. The Democrats will go into the 117th Congress with 222 seats House seats—just four more than the 218 needed to pass most legislation.
Other arms reach out to me
And other eyes will smile tenderly
Still, in peaceful dreams, I see
The road leads back to you
Hoagy Carmichael / Stuart Gorell
We, the people, fired the nation’s chief executive long about a month ago. The order is scheduled to be confirmed by a vote of the Electoral College on December 14, 2020. It will then come due on January 20, 2021, when Joe Biden is sworn in as the 46th President of the United States.
The College’s vote will finalize the election of Joe Biden. It will not, however, bring an end to the 2020 election cycle. There is a critical step still to be taken for that to happen.
On January 5, 2021, Georgia voters will again be casting ballots to fill both of its US Senate seats. The outcome of the Peach State’s balloting is second in importance only to November’s presidential contest. In fact, some political veterans have dubbed Georgia’s Senate races the most consequential runoff in American history in terms of shifting the balance of power in Washington.
I don’t often have an opportunity to agree with Newt Gingrich. The former House Speaker has seen—from inside political circles— many elections come and go. I am willing, therefore, to defer to his superior experience in this matter.
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.