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Federal Judge Dismisses Clean Air Council Lawsuit Challenging Federal Actions On Climate Change, Rollback Of Regulations
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On February 19, Eastern Federal District Court Judge Paul S. Diamond granted a U.S. Department of Justice request to dismiss a lawsuit on procedural grounds brought by the Clean Air Council and two Pennsylvania children alleging harm from recent efforts to rollback federal environmental regulations.

Judge Diamond said, “The Clean Air Council and two minors ask me to declare that the United States of America, the President, the Secretaries of Energy and the Interior as well as the Departments themselves, and the Environmental Protection Agency and its Administrator have violated and will violate Plaintiffs’ rights by considering amendments to environmental laws, by “rolling back” environmental regulations, and by making related personnel and budget changes.

“Plaintiffs thus effectively ask me to supervise any actions the President and his appointees take that might touch on “the environment.”

“Because I have neither the authority nor the inclination to assume control of the Executive Branch, I will grant Defendants’ Motion.”

In reaction to the decision, Joseph Minott, Executive Director of the Clean Air Council said, “We respectfully disagree with the decision and will discuss next steps with our counsel. 

“The Trump administration continues to rely on junk science to implement reckless climate change policies in the face of indisputable U.S. and international scientific consensus. 

“For decades, the U.S. government has acknowledged that climate change presents a clear and present danger to life, and represents an urgent and potentially irreversible threat to human societies and the planet. 

“These acts of deliberate indifference are increasing U.S. contributions to climate change, thereby increasing the frequency and intensity of its life-threatening effects, and violating our constitutional rights. 

“We are troubled that the opinion states the federal government "do[es] not produce greenhouse gases" and that "climate change is the creation of those that pollute the air, not the Government. These statements are both irrelevant to our claims and factually incorrect.”

The Clean Air Council lawsuit alleged rollbacks of environmental regulations by the named agencies increased the frequency and/or the intensity of the life-threatening effects of climate change and are based on “junk science” in violations of the plaintiffs’ rights under the due process clause and the public trust doctrine.

One of the children in the case, a 7-year old from Philadelphia, suffers from severe seasonal allergies that they said will be exacerbated and will continue to worsen as climate changes becomes more severe.

The second child is an 11-year old from Chester County who is “passionate about protecting the environment, experiences anxiety about climate change and suffers from asthma.  He also experienced the “frightening impact of Super Storm Sandy in 2012 and Hurricane Irene in 2011.

The opinion recounts part of the argument by the Council, saying “The United States Government purportedly has known for some fifty years that climate change “presents a clear and present danger to the health and welfare of its citizens and an immediate threat to the planet.”

“As alleged, climate change causes “more frequent, extreme, and costly weather events, such as floods, hurricanes, and tornadoes,” impairing human health and disproportionately affecting children.

“Defendants have nonetheless acted with “reckless and deliberate indifference” to the danger of climate change by “roll[ing] back regulations and practices previously directed at addressing and minimizing the United States[’] contribution to climate change.””

Some specific actions taken or reversed cited in the Council’s lawsuit are--

-- President’s March 28, 2017 Executive Order: (1) directing the EPA to review the Clean Power Plan, which limits carbon emissions for existing fossil fuel power plants; (2) revoking the policy requiring that Federal agencies avoid and minimize effects on natural resources; (3) halting agency calculation of “social cost of carbon”; and (4) directing the DOI to amend or withdraw a policy requiring an environmental review of the Federal coal leasing plan and lifting the plan’s suspension

-- Methane gas reporting requirement for oil and gas companies (weakened);

-- Keystone XL pipeline project’s suspension (reversed);

-- Outer Continental Shelf Lands Act, which banned offshore drilling in Atlantic and Alaskan waters (reversed);

-- An order requiring national parks to consider climate change when managing resources (reversed);

-- Bureau of Land Management’s public land use rule (reversed); and

-- Rule requiring consideration of climate change when altering infrastructure (reversed).

The judge dismissed the case, in part, based on whether the Clean Air Council and the other plaintiffs had standing to bring the lawsuit.  He concluded they did not because they failed to show how Council members or the other plaintiffs would be harmed by the actions of the federal government.

The judge also concluded, “... Plaintiffs’ claims are not viable because: (1) there is no legally cognizable due process right to environmental quality; (2) the Ninth Amendment provides no substantive rights to sustain Plaintiffs’ action; and (3) Plaintiffs’ public trust claim has no basis in law.”

In his conclusion, the judge said, “Invoking Marbury v. Madison, Plaintiffs admonish that “[i]t is the Judiciary’s duty to determine when the Executive has committed constitutional violations, and Plaintiffs allege such violations here.”

“There is a difference, however, between determining the constitutionality of particular Executive action and regulating all statutory, regulatory, budgetary, personnel, and administrative Executive actions that relate to the environment. The former is certainly within the province of the Judiciary. The latter would make the Executive a subsidiary of the Judiciary.

“I will dismiss the Amended Complaint on alternative grounds: lack of standing and failure to state a claim.”

Click Here for a copy of Judge Diamond’s decision.

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[Posted: Feb. 21, 2019]


2/25/2019

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