The Situation: Proposed resolutions in Congress and an injunction request in a Ninth Circuit case both seek significant reductions in fossil fuel use throughout the economy.
The Result: In the near term, it is easy to predict that restrictions on the use of fossil fuel will not be adopted into federal law through legislative or judicial action. But these developments are a harbinger of more serious efforts that could be on the horizon.
Looking Ahead: The potential impact on business operations of a substantial, federally mandated reduction in fossil fuel use varies from company to company. It would be an existential threat to some and perhaps a catalyst for growth to others. In either case, the possibility cannot be ignored in business, political, and legal planning efforts.
The introduction of the Green New Deal resolution in Congress and a recent preliminary injunction request in a federal circuit court case are the latest challenges to how the United States currently uses and develops fossil fuels. It is easy to predict that none of the changes contemplated in the Green New Deal or in the injunction request are likely to become law in the near term because of the current political makeup in Washington and the current composition of the Supreme Court. But a future administration with different priorities and working in concert with a friendly Congress could be encouraged to seek laws and rules that would have the effect of reducing fossil fuel use in a very significant way.
The Green New Deal resolutions introduced in both houses of Congress last month propose that increases in global temperature can be kept below 1.5° C through a 40 percent to 60 percent reduction in greenhouse gas emissions by 2030 (compared to 2010 emission levels) and that net zero global greenhouse gas emissions can be achieved by 2050 (H. Res 109; S. Res 59; S. Joint Res. 8). The Green New Deal includes a broader goal of having 100 percent of the power demand in the United States supplied with renewable, zero-emission energy sources and of having greenhouse gas emissions eliminated from industry and transportation sectors "as much as technologically feasible." It calls for all buildings to be upgraded to maximum energy efficiency, including electrification, and proposes that the agricultural sector achieve reduced emissions through family and sustainable farming.
The Green New Deal also identifies various social goals that it proposes to promote at the same time climate change is addressed. For example, it calls for a 10-year national mobilization to provide millions of jobs, create prosperity, and counteract "systemic injustices" to "frontline and vulnerable communities." It seeks to ensure that "every business person is free from unfair competition and domination by domestic or international monopolies."
Meanwhile, in the Ninth Circuit a group of 21 youths and a former NASA scientist, who is purporting to represent future generations, are seeking an injunction to prohibit the federal government from authorizing: (i) coal mining on federal public lands; (ii) offshore oil and gas projects on the Outer Continental Shelf; and (iii) development of new fossil fuel infrastructure (Urgent Motion Under Circuit Rule 27-3(b) for Preliminary Injunction, Juliana v. U.S., Docket #21, Filed Feb. 7, 2019 (9th Cir. Case No. 18-36082)). The plaintiffs are asking the Court to act on the injunction request before March 20, 2019, when a Gulf of Mexico oil lease sale is scheduled. An assertion that climate change is a state-created danger that violates the Constitutional rights of the plaintiffs forms the basis for the motion.
The Juliana case is in the Ninth Circuit as an interlocutory appeal of an Oregon district court's denial of the government's motion to dismiss the case before trial. The district court was prepared to move forward with a trial on the state-created danger theory and on claims asserting government violations of the public trust doctrine and of a purported Constitutional right to a stable climate. The plaintiffs told the district court that if they succeeded on the merits at trial, they would ask for an order requiring the federal government to "prepare and implement a national remedial plan to stabilize the climate system." Once the Ninth Circuit took the appeal, the plaintiffs upped the ante with the injunction motion—a procedural step not taken in the lower court.
A judicially supervised, national remedial plan for climate change is not going to become the law of the land in the near term. A Pennsylvania district court has squarely rejected the same legal theories presented to the Ninth Circuit. In doing so, the Pennsylvania court stated its view that the Oregon district court "certainly contravened or ignored longstanding authority" by allowing the case to continue (Clean Air Council v. U.S., slip op., Case No. 17-4977 (E.D. Pa. Feb. 19, 2019)). The Department of Justice, not surprisingly, is highlighting the Pennsylvania decision in its Ninth Circuit briefing (Appellants’ Opposition to Motion for Preliminary Injunction Pending Appeal, Juliana v. U.S., Docket #32, Filed Feb. 19, 2019 (9th Cir. Case No. 18-36082)). If the government loses in the Ninth Circuit, the Supreme Court will likely have the final say on whether these plaintiffs have standing to sue, whether the asserted Constitutional rights even exist in the context of climate change, and whether the claims raise political questions that are beyond the power of the courts to address. Indeed, the Supreme Court already commented that the claims seem remarkably broad when it put pretrial activity on hold for a short time in 2018 in response to a mandamus request to give the Ninth Circuit a chance to get involved. (For a complete summary of these proceedings in the Juliana case, see the Winter 2019 edition of The Climate Report.)
The Green New Deal and court actions, such as the request for an injunction against fossil fuel project approvals, would have been unthinkable 12 years ago when the Supreme Court decided that greenhouse gases could be regulated under the Clean Air Act (Massachusetts v. EPA, 549 U.S. 497 (2007)). The serious attention that the Green New Deal resolutions and the Ninth Circuit case have received is a sign of how far the discussion has progressed, even if an economy-wide reduction in fossil fuel use always was a long-term, but unspoken goal of those who are now seeking it.
The Green New Deal resolutions, combined with the recent injunction motion, crystallize the holy grail for those who approach climate change as an existential threat to their communities. Previously, they were content to seek incremental measures, such as reducing or eliminating coal-fired power generation, increasing motor vehicle fuel efficiency requirements, and encouraging investments in mass transit and electric vehicles. Now, they are openly seeking the wholesale elimination of fossil fuels from large sections of the economy.
It is easy to predict that this approach will not be adopted into federal law through legislative or judicial action in the near term. But it is a harbinger of serious efforts to achieve these outcomes that could be on the horizon given that the Green New Deal resolutions have received early support from a number of presidential candidates. Is an executive declaration of "national emergency" on climate change so far-fetched?
The potential impact on business operations of a successful effort to reduce fossil fuel use significantly varies from company to company. It would be an existential threat to some and perhaps a catalyst for growth to others. In either case, the possibility cannot be ignored in business, political, and legal planning efforts.
Three Key Takeaways
Recent developments in climate change policy, such as the introduction of Green New Deal resolutions in Congress last month and a request for an injunction against federal fossil fuel project approvals, would have been unthinkable 12 years ago when the Supreme Court decided that greenhouse gases could be regulated under the Clean Air Act.
Those who approach climate change as an existential threat to their communities are now seeking the wholesale elimination of fossil fuels from large sections of the economy in court and in Congress.
It is easy to predict that these efforts will not be successful in the near term, but serious efforts to achieve these outcomes could be on the horizon and cannot be ignored in business, political, and legal planning efforts.