DOJ backing climate science? Blame Obama, official says

Source: Ellen M. Gilmer, E&E News reporter • Posted: Tuesday, November 20, 2018

A top Justice Department lawyer was quick to point to Obama administration officials Saturday when asked why the government hasn’t challenged climate science in high-profile litigation brought by youth plaintiffs.

“The answer in that case was filed in a previous administration and reflects the views of that administration,” said Eric Grant, a top lawyer in DOJ’s Environment and Natural Resources Division.

Grant was responding to a question about why DOJ acknowledges the link between fossil fuel consumption and climate impacts in legal arguments in Juliana v. United States, the case brought by 21 children and young adults asserting a right to a safe climate.

It was the previous administration that laid the groundwork in the case, Grant said.

“And more importantly,” he added, “our very simple argument is we win as a matter of law. No matter the truth of the allegations of the plaintiffs’ complaint, there is no substantive due process right to a stable climate system.”

Grant, who joined ENRD as a deputy assistant attorney general last year, made the remarks during a panel discussion at the Federalist Society’s annual conference in Washington, D.C. He noted that his statements did not represent DOJ’s official views.

He also stopped short of challenging climate science outright and ducked a question about whether EPA’s endangerment finding for greenhouse gases cramps DOJ’s legal approach.

“The endangerment finding is there, adopted pursuant to the Administrative Procedure Act, and it will remain until it’s changed pursuant to that same act,” he said.

“Whether and when it will be repealed, I don’t know,” he added later. “Our clients at EPA have a lot on their plate, and if you have a petition pending, I’m sure they’re considering it.”

Saturday’s discussion highlighted the increasingly striking contrasts between the Obama administration’s and Trump administration’s approaches to environmental litigation.

While DOJ has pushed to derail the so-called kids’ climate case under both presidents, Trump officials have been more aggressive in their opposition, frequently criticizing the case in public remarks (E&E News PM, Oct. 19).

Niskanen Center attorney David Bookbinder, also on the Federalist Society panel, pushed back on Grant’s description of the Juliana defense strategy as a product of the Obama administration.

Bookbinder, a libertarian environmentalist, suggested DOJ understands that challenging climate science would be a losing strategy.

“Yes, the answer in Juliana was filed, I think, in December of 2016,” he said. “Two years later, the Justice Department has not seen fit to submit an amended answer in that case, and I think that’s very interesting that they’ve not chosen to dispute any of the facts, even on the eve of trial.”

‘The persistent widow’

Grant described the kids’ climate case as an ongoing nuisance to agency lawyers, recounting that DOJ has filed four mandamus petitions in the 9th U.S. Circuit Court of Appeals, one at the Supreme Court and two stay applications at the Supreme Court. Mandamus petitions are considered extraordinary requests for a higher court to circumvent a lower court’s decision.

“In that effort, I feel like the title character in the biblical parable of the persistent widow,” he said, referring to the tale of a woman who eventually wore down a town judge with her repeated requests that he address an injustice. The story is also known as the “parable of the unjust judge.”

Grant assailed the U.S. District Court for the District of Oregon’s decisions allowing the case to move forward.

“In this lawsuit, District Judge Ann Aiken has already recognized a Fifth Amendment substantive due process right,” he said, pausing and gesticulating for comedic effect, “to a climate system capable of sustaining human life.”

Fellow panelist James Huffman, a professor at Lewis & Clark Law School, contended that the plaintiffs’ legal strategy depends on finding a judge who “takes the bait.”

“And sure enough, right there in my home state of Oregon, they found the judge,” he said.

The Juliana trial is currently stalled while the 9th Circuit considers the government’s latest request to sideline proceedings (Greenwire, Nov. 9).

Grant and other panelists also voiced skepticism about litigation brought by municipalities in California, Colorado and New York, and the state of Rhode Island, against major oil companies over climate damages.

“If two cities in California may properly allege injuries from climate change in federal court, then so may every person on the planet,” he said.

“Federal courts are poorly equipped to handle this multitude of cases and the associated complex scientific and economic judgments, and technical judgments, that are part of them.”

Bookbinder, who is representing Colorado municipalities in a case against Suncor Energy, said the litigation is simply designed to help local governments recover the costs of climate impacts tied to the company’s production and marketing of fossil fuels after it already understood and downplayed their negative effects.

One panelist questioned climate science altogether. Mark Smith of the New York law firm Smith Valliere PLLC compared the nuisance cases to “superstitions and mysticism” of the Dark Ages.

He invited audience members concerned about carbon dioxide emissions to hold their breath during his remarks.