Right to safe climate ‘simply does not exist’ — DOJ lawyer

Source: Ellen M. Gilmer, E&E News reporter • Posted: Monday, October 22, 2018

The kids and young adults seeking to hold the government accountable for climate change impacts have “no legal basis” for their case, the Trump administration’s top environmental lawyer said.

In remarks at the fall conference of the American Bar Association’s Section of Environment, Energy and Resources in San Diego, the Justice Department’s Jeffrey Wood delivered a scathing assessment of the legal claims in the “kids’ climate case.”

The plaintiffs are asserting a constitutional right that “simply does not exist,” he said, describing their argument that they are entitled to a safe climate.

Wood has served as acting head of DOJ’s Environment and Natural Resources Division since President Trump took office. The Senate last week confirmed Jeffrey Clark to fill the role (Greenwire, Oct. 11).

Wood said Clark would start at the department at the beginning of November. Wood will stay on as a top attorney in the division.

Wood spent a large portion of his keynote address discussing the climate case, which is set to go to trial later this month in Oregon. He criticized the U.S. District Court for the District of Oregon for allowing the case to move forward.

“In our view, the Oregon lawsuit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy,” he said in prepared remarks. “It is a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.”

Government lawyers during both the Obama and Trump administrations have made similar arguments against the kids’ case, repeatedly asking the district court, the 9th U.S. Circuit Court of Appeals and the Supreme Court to halt the case.

DOJ just yesterday made its second plea for the Supreme Court to step in and stop the litigation (Greenwire, Oct. 18).

Wood said the government is continuing to prepare for the trial.

He noted that ENRD lawyers have also been busy this year on other issues before the Supreme Court. The department has helped defend the Fish and Wildlife Service’s protections of a rare southern frog and is preparing for upcoming arguments in disputes over tribal hunting rights and a hovercraft-riding moose hunter in an Alaska national preserve.

The division has also carried out noteworthy enforcement actions under President Trump, Wood said.

“When the new administration took office, there were probably some who mistakenly believed that we would be soft on enforcement,” he said. “Twenty-one months later, I suspect that there are fewer who have that belief.”

Since January 2017, he said, ENRD has recovered more than $1 billion in injunctive relief for Superfund cleanups and levied big penalties in cases dealing with wetlands destruction and oil spills.

DOJ pulled in $1.57 billion in civil penalties in 2017 — the department’s second-best year in the past two decades. Most of that came from a previously negotiated emissions settlement with Volkswagen AG, but Wood noted that $121 million came from other matters. That number still ranks in the top half of annual totals for the past 20 years.

Wood also touted the division’s work defending the Trump administration’s deregulation efforts, though he acknowledged it hasn’t always gone smoothly.

Federal courts have struck down several recent rollbacks targeting environmental protections, including EPA pesticide restrictions and Obama-era efforts to reduce methane emissions from the oil and gas industry.

“Anyone who has litigated on behalf of the federal government knows that you win some and you lose some,” Wood said. “While we strive to win, we seek to do so consistent with doing justice.”