In their 17 Jan 2020 ruling, a panel of three judges on the Ninth Circuit Court of Appeals fired what constitutes a clear political warning shot that the era of fossil carbon fuel energy is ending. This involved the 2015 Juliana v. United States case in federal court that sought to have the courts impose a plan to fundamentally transform America’s energy infrastructure. While the case was dismissed on a constitutional technicality, even the majority in the 2–1 ruling held that the plaintiff’s assertion that anthropogenic greenhouse gas emissions from fossil carbon fuels were causing harm to the environment had merit. If upheld by the U.S. Supreme Court in an expected appeal, the drive for a political solution will intensify—perhaps during this fall’s political campaigns. The only remaining question is whether a knee-jerk progressive political “solution” such as the Green New Deal or the only practical progressive engineering solution—astroelectricity—will be undertaken. The former will bring economic and political disaster; the latter will carry America into the 22nd century with the sustainable energy needed for a prosperous economy and peaceful nation. It’s time to rally support for astroelectricity!
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While not a lawyer, I have tracked this particular climate change-related lawsuit for several years. In 2015, a group of 21 minors, with a host of supporting organizations, filed a federal lawsuit against President Obama and his administration alleging harm and more future harm from climate change due to American anthropogenic greenhouse gas emissions. With the election of President Trump, he and his administration have become the defendants.
From the outset, the legal strategy appeared to be flawed. The plaintiffs’ desired outcome was to have the federal courts—meaning one federal judge in Oregon—assert the power of the court to supercede that of Congress to make laws and of the President to determine and enact federal policy. Legal objections by the previous and current administrations prevented the case from going to trial. One appeal by the plaintiffs to get the case to trial went to the U.S. Supreme Court, but failed to achieve their goal. Instead, the motion to begin the trial ended up in the Ninth Circuit Court of Appeals where a three-judge panel ruled that the lawsuit was unconstitutional.
In a split decision, the majority held that there was no constitutional basis—despite the merits of the lawsuit—for the courts to intercede, even when the other two separate branches of the government failed to act. It is the “despite the merits of the lawsuit” comments in the ruling that constitutes the warning shot that the era of fossil carbon fuels is ending.
Here are five key quotes from the summary of the ruling released by the court (with emphasis added). (An extended excerpt is below.)
- The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions.
- Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.
- Another expert has opined that although the required emissions reductions are “technically feasible,” they can be achieved only through a comprehensive plan for “nearly complete decarbonization” that includes both an “unprecedently rapid build out” of renewable energy and a “sustained commitment to infrastructure transformation over decades.”
- There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular.
- As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.
The one flaw in the court’s ruling was the apparent acceptance of scientific opinion as a legal replacement for a tested scientific hypothesis. While courts operate on opinion, science does not. I am not aware of a tested hypothesis that anthropogenic greenhouse gas emissions are causing or will cause significant and harmful climate change. This does not mean that I am not concerned. However, an opinion of some scientists—no matter how many—does not replace the use of the scientific method to establish facts based on measured data. For the courts to assert the value of opinion—often an emotionally-charged opinion—in the absence of a tested hypothesis or as a replacement for a tested hypothesis is very dangerous. Fortunately, in this case so far, the court deferred to the legislative and executive branches to take action. This means that the decision to not act, or more likely, how to act will be political. (This assumes that the full Ninth Circuit Court or the U.S. Supreme Court does not overturn the ruling.)
As mentioned, I am concerned that the rising and abnormally high atmospheric CO2 concentration may be causing or will cause substantial harm to the environment and, consequently, to our civilization. I am unaware of a tested hypothesis establishing that the abnormally high CO2 concentration is safe. When we find abnormally high concentrations of some chemical in the water, we take action to reduce the concentration to normal or find a different water source. Since we can’t replace our atmosphere and lacking a tested hypothesis establishing the safety of the abnormally high CO2, we must take action to return this CO2 concentration to the pre-industrial normal level.
It is now evident that the political opposition to taking legal and regulatory actions to reduce and eliminate fossil carbon fuel use is declining. The increasingly socialist Democratic Party is championing destructive “solutions” while the Republican Party, apparently unaware of the astroelectricity solution, is now proposing meaningless half-measures.
As I explain in detail in my eBook, Astroelectricity, there is a very politically- and economically-favorable WIN-WIN path forward for an orderly transition from fossil carbon fuels to full sustainable energy by 2100. Achieving this by 2100 is consistent with the “goal” established in the 2015 Paris Climate Agreement.
Will we have a knee-jerk and technologically stupid progressive political approach, such as the Green New Deal, or will America adopt the only practical progressive engineering solution of GEO space solar power—what I refer to as astroelectricity? Absent an informed public rallying to the cause of astroelectricity, something like the disastrous and politically dangerous Green New Deal will be imposed on America. It’s time to support astroelectricity as America’s practical sustainable energy solution!
The following are excerpts from the court’s summary of the ruling by the Ninth Circuit Court of Appeals in Juliana v. United States (with emphasis of key points).
The plaintiffs have compiled an extensive record, which at this stage in the litigation we take in the light most favorable to their claims. See Plumhoff v. Rickard, 572 U.S. 765, 768 (2014). The record leaves little basis for denying that climate change is occurring at an increasingly rapid pace. It documents that since the dawn of the Industrial Age, atmospheric carbon dioxide has skyrocketed to levels not seen for almost three million years. For hundreds of thousands of years, average carbon concentration fluctuated between 180 and 280 parts per million. Today, it is over 410 parts per million and climbing. Although carbon levels rose gradually after the last Ice Age, the most recent surge has occurred more than 100 times faster; half of that increase has come in the last forty years.
Copious expert evidence establishes that this unprecedented rise stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked. Temperatures have already risen 0.9 degrees Celsius above Celsius by the end of the century. The hottest years on record all fall within this decade, and each year since 1997 has been hotter than the previous average. This extreme heat is melting polar ice caps and may cause sea levels to rise 15 to 30 feet by 2100. The problem is approaching “the point of no return.” Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.
The record also conclusively establishes that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions. As early as 1965, the Johnson Administration cautioned that fossil fuel emissions threatened significant changes to climate, global temperatures, sea levels, and other stratospheric properties. In 1983, an Environmental Protection Agency (“EPA”) report projected an increase of 2 degrees Celsius by 2040, warning that a “wait and see” carbon emissions policy was extremely risky. And, in the 1990s, the EPA implored the government to act before it was too late. Nonetheless, by 2014, U.S. fossil fuel emissions had climbed to 5.4 billion metric tons, up substantially from 1965. This growth shows no signs of abating. From 2008 to 2017, domestic petroleum and natural gas production increased by nearly 60%, and the country is now expanding oil and gas extraction four times faster than any other nation.
The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.
…
The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, see, e.g., 30 U.S.C. § 201 (authorizing the Secretary of the Interior to lease land for coal mining), but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands, see U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”).
As an initial matter, we note that although the plaintiffs contended at oral argument that they challenge only affirmative activities by the government, an order simply enjoining those activities will not, according to their own experts’ opinions, suffice to stop catastrophic climate change or even ameliorate their injuries.6 The plaintiffs’ experts opine that the federal government’s leases and subsidies have contributed to global carbon emissions. But they do not show that even the total elimination of the challenged programs would halt the growth of carbon dioxide levels in the atmosphere, let alone decrease that growth. Nor does any expert contend that elimination of the challenged pro-carbon fuels programs would by itself prevent further injury to the plaintiffs. Rather, the record shows that many of the emissions causing climate change happened decades ago or come from foreign and non-governmental sources.
Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world. One expert opines that atmospheric carbon reductions must come “largely via reforestation,” and include rapid and immediate decreases in emissions from many sources. “[L]eisurely reductions of one of two percent per year,” he explains, “will not suffice.” Another expert has opined that although the required emissions reductions are “technically feasible,” they can be achieved only through a comprehensive plan for “nearly complete decarbonization” that includes both an “unprecedently rapid build out” of renewable energy and a “sustained commitment to infrastructure transformation over decades.” And, that commitment, another expert emphasizes, must include everything from energy efficient lighting to improved public transportation to hydrogen-powered aircraft.
…
We are therefore skeptical that the first redressability prong is satisfied. But even assuming that it is, the plaintiffs do not surmount the remaining hurdle—establishing that the specific relief they seek is within the power of an Article III court. There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.
If not already following this blog, please click the “follow” button at the bottom right to sign up. Receiving notification via email is best to ensure that you do not miss a new posting. Sending notifications is the only use of your email address. It is not sold or used elsewhere. Besides, you can always unsubscribe. Please forward these postings to your friends who share your spacefaring interest. Also, please check out the Spacefaring Institute’s YouTube channel.
James Michael (Mike) Snead is an aerospace Professional Engineer in the United States, an Associate Fellow of the American Institute of Aeronautics and Astronautics (AIAA), and a past chair of the AIAA’s Space Logistics Technical Committee. He is the founder and president of the Spacefaring Institute LLC (spacefaringinstitute.net) which is focused on space solar power-generated astroelectricity and the astrologistics infrastructure necessary to enable the spacefaring industrial revolution that will build space solar power energy systems. Mike Snead has been involved in space development since the mid-1980s when he supported the U.S. Air Force Transatmospheric Vehicle (TAV) studies, the National Aerospace Plane program, and the Delta Clipper Experimental (DC-X) project. In 2007, after retiring from civilian employment with the Air Force, he began to study the need for (and politics associated with) undertaking space solar power. Beginning in the late 1980s, he has published numerous papers and articles on various aspects of manned spaceflight, astrologistics, and energy. His technical papers are located at https://www.mikesnead.com and https://www.researchgate.net/profile/Mike-Snead/research. His blog is at: https://spacefaringamerica.com. His eBook, Astroelectricity, can be downloaded for free here. He can be contacted through LinkedIn or through email sent to spacefaringinstitute@gmail.com.