Frustrated with inaction in Congress, environmental activists are asking the federal courts to step-in to force the federal government to begin regulating greenhouse gas emissions, or do so more aggressively. The case is Juliana v. United States, and its gotten more attention than it deserves in the popular media. We say that because there is absolutely no merit to plaintiffs’ claim that federal government has a legal duty to impose greenhouse gas restrictions. But, if plaintiffs were to prevail it would mean higher energy costs for everyone, which would be bad news for the small business community and for consumers alike.
What are they arguing?
The plaintiffs have alleged a handful of constitutional claims, including a supposed violation of equal protection of the law and due process. These claims can only be called bizarre. Indeed, the Constitution is designed to restrain the power of federal actors, not to compel regulation of private industry. And while the Constitution enumerates limited powers to Congress to make law as may be deemed necessary and appropriate on certain matters, there is nothing in the Constitution commanding that the government must regulate greenhouse gas emissions.
They also allege that the federal government has a duty to regulate greenhouse gas emissions under the so called “public nuisance doctrine.” But, as we pointed out in our recent amicus brief, there is no federal public nuisance doctrine. In fact, the Supreme Court has said this already. And separately, the Supreme Court has explicitly ruled that the Clean Air Act displaces common law claims seeking to force greenhouse gas reductions—meaning that there is no basis for asking a judge to impose greenhouse gas restrictions.
What to watch for next?
The environmental activists pushing this litigation are hoping for some sort of climate change trial. But there is no point in such a spectacle where it is already clear that there is no basis for their lawsuit. Accordingly, we are urging the Ninth Circuit to dismiss their case.
If this case is allowed to continue further, there is a great chance that the U.S. Supreme Court may need to step-in to reaffirm what it has already said in other cases. For now, we must wait and see what happens next. But rest assured, we’re closely monitoring developments and will respond as needed to protect the small business community.