Gorsuch Supreme Court Nomination: High Stakes for the Planet
The U.S. Senate is beginning the confirmation process today to consider Judge Neil Gorsuch to the U.S. Supreme Court. Gorsuch, nominated by President Trump on Jan. 31, is now a jurist on the 10th U.S. Circuit Court of Appeals in Denver.
Senators will be making their opening statements, with Republicans expected to say that he will be fair-minded on all issues, including those pertaining to the environment by pointing to what they consider an even-handed record. Democrats, though, will be asking targeted questions of the would-be Supreme Court jurist, especially about his thinking on the carbon-cutting Clean Power Plan that now awaits a decision at the appeals court level.
Trump Picks 'Friend of Big Polluters' for Supreme Court https://t.co/p9v4uzN7f2 (@ecowatch) #StopGorsuch— Sierra Club (@Sierra Club)1485965616.0
What could happen? "I'm willing … to say, that he's going to come at these things neutral and if he doesn't think an agency's interpretation is credible he's going to say so," Pat Parenteau, a professor at Vermont Law School, told the Associate Press. "Sometimes that's going to cut in favor of the environment and sometimes it's going to cut against the environment and I don't know how much of that concern actually weighs into his decision making."
What cases might environmentalists look at to get a keener insight into Judge Gorsuch's legal mindset? One of the most recent and hotly contested consisted of a Colorado state mandate requiring investor-owned utilities get 30 percent of electricity they sell from renewable sources by 2020—a law that Gorsuch voted to uphold.
According to Heavy:
In 2015, on a three-judge panel, Gorsuch affirmed that Colorado's renewable energy law would remain in place and did not violate the Constitution. The plaintiff had advocated for a free market approach to environmentalism and argued that the law violated the Commerce Clause and unfairly hurt out-of-state businesses, such as coal producers.
Conversely, according to the AP, Gorsuch sided with business interest in a 2010 case in which the U.S. Environmental Protection Agency (EPA) had classified land in New Mexico as Indian territory when a company had wanted to explore there. Gorsuch said that the land in question was not actually on an Indian reservation and thus ruled in favor of the mining company.
By way of background, Neil Gorsuch is the son of Ann Burford Gorsuch, who led the EPA from 1981 to 1983 when President Reagan was in office. Environmentalists had been critical of her back in the day, saying that she had failed to tackle cases important to their cause and that she had tried to loosen existing regulations that had been meant to reduce pollution.
To that end, Democratic senators have expressed concern that Judge Gorsuch naturally favors the interest of big business. Senators worry that this would come at the expense of the environment as well as the most vulnerable Americans.
"The highest court in the land should be reserved only for those who believe that a democracy works for the people—not corporations," Michael Brune, executive director of the Sierra Club, said in a statement. "Unfortunately but not unsurprisingly, Donald Trump's nominee, Neil Gorsuch, does not subscribe to this belief as evidenced by his long record of anti-environment, anti-women and anti-worker decisions."
Progress Now in Colorado believes that the nominee would set back environmental policy. Meantime, NextGen Climate President Tom Steyer said that, when Gorsuch was nominated, the U.S. Senate had owed "no deference" to Trump, who lost the popular vote. "The Supreme Court is one of the last lines of defense at this perilous time for our country," Steyer added.
Environmentalists, for example, point to the Chevron Doctrine, which is encompassed in the case of Chevron U.S.A., Inc v. NRDC. Simply, courts will defer to the federal agencies that have thoroughly analyzed a policy. But green groups, pointing to an earlier immigration case, are fearful that the Supreme Court nominee would give short shrift to the doctrine. That's because it is often associated with EPA regulations.
"It gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous," Billy Corriher of the Center for American Progress said, according to the AP. "Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts."
While some of the high court's current judges have criticized the doctrine—notably Justice Clarence Thomas—it has, in effect, served as a check on judicial activism, Kenneth Reich, an environmental and energy lawyer in Boston, said in an earlier interview. That's particularly relevant with regard to statutes that require a precise expertise—knowledge that the judges cannot possibly have.
The Clean Power Plan is a case-in-point. In 2007, the Supreme Court ruled that carbon dioxide is a pollutant that could be regulated under the Clean Air Act—something that EPA made official in 2009, saying it was a danger to public health and welfare. And in 2014, the high court upheld that so-called endangerment finding. That ruling is the foundation behind President Obama's Clean Power Plan.
But in February 2016, the Supreme Court issued a "stay" to address some concerns of several states before sending the case back to the DC Court of Appeals, where a decision is expected soon. No matter how it rules, it will head back to the high court, which is now evenly split on the Clean Power Plan. The question many are asking is just how would Gorsuch decide and would he respect the Chevron Doctrine?
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A Game of Jenga<p>Think of it as a game of Jenga and the planet's climate system as the tower. For generations, we have been slowly removing blocks. But at some point, we will remove a pivotal block, such as the collapse of one of the major global ocean circulation systems, for example the Atlantic Meridional Overturning Circulation (AMOC), that will cause all or part of the global climate system to fall into a planetary emergency.</p><p>But worse still, it could cause runaway damage: Where the tipping points form a domino-like cascade, where breaching one triggers breaches of others, creating an unstoppable shift to a radically and swiftly changing climate.</p><p>One of the most concerning tipping points is mass methane release. Methane can be found in deep freeze storage within permafrost and at the bottom of the deepest oceans in the form of methane hydrates. But rising sea and air temperatures are beginning to thaw these stores of methane.</p><p>This would release a powerful greenhouse gas into the atmosphere, 30-times more potent than carbon dioxide as a global warming agent. This would drastically increase temperatures and rush us towards the breach of other tipping points.</p><p>This could include the acceleration of ice thaw on all three of the globe's large, land-based ice sheets – Greenland, West Antarctica and the Wilkes Basin in East Antarctica. The potential collapse of the West Antarctic ice sheet is seen as a key tipping point, as its loss could eventually <a href="https://science.sciencemag.org/content/324/5929/901" target="_blank">raise global sea levels by 3.3 meters</a> with important regional variations.</p><p>More than that, we would be on the irreversible path to full land-ice melt, causing sea levels to rise by up to 30 meters, roughly at the rate of two meters per century, or maybe faster. Just look at the raised beaches around the world, at the last high stand of global sea level, at the end of the Pleistocene period around 120,0000 years ago, to see the evidence of such a warm world, which was just 2°C warmer than the present day.</p>
Cutting Off Circulation<p>As well as devastating low-lying and coastal areas around the world, melting polar ice could set off another tipping point: a disablement to the AMOC.</p><p>This circulation system drives a northward flow of warm, salty water on the upper layers of the ocean from the tropics to the northeast Atlantic region, and a southward flow of cold water deep in the ocean.</p><p>The ocean conveyor belt has a major effect on the climate, seasonal cycles and temperature in western and northern Europe. It means the region is warmer than other areas of similar latitude.</p><p>But melting ice from the Greenland ice sheet could threaten the AMOC system. It would dilute the salty sea water in the north Atlantic, making the water lighter and less able or unable to sink. This would slow the engine that drives this ocean circulation.</p><p><a href="https://www.carbonbrief.org/atlantic-conveyor-belt-has-slowed-15-per-cent-since-mid-twentieth-century" target="_blank">Recent research</a> suggests the AMOC has already weakened by around 15% since the middle of the 20th century. If this continues, it could have a major impact on the climate of the northern hemisphere, but particularly Europe. It may even lead to the <a href="https://ore.exeter.ac.uk/repository/handle/10871/39731?show=full" target="_blank" rel="noopener noreferrer">cessation of arable farming</a> in the UK, for instance.</p><p>It may also reduce rainfall over the Amazon basin, impact the monsoon systems in Asia and, by bringing warm waters into the Southern Ocean, further destabilize ice in Antarctica and accelerate global sea level rise.</p>
The Atlantic Meridional Overturning Circulation has a major effect on the climate. Praetorius (2018)
Is it Time to Declare a Climate Emergency?<p>At what stage, and at what rise in global temperatures, will these tipping points be reached? No one is entirely sure. It may take centuries, millennia or it could be imminent.</p><p>But as COVID-19 taught us, we need to prepare for the expected. We were aware of the risk of a pandemic. We also knew that we were not sufficiently prepared. But we didn't act in a meaningful manner. Thankfully, we have been able to fast-track the production of vaccines to combat COVID-19. But there is no vaccine for climate change once we have passed these tipping points.</p><p><a href="https://www.weforum.org/reports/the-global-risks-report-2021" target="_blank">We need to act now on our climate</a>. Act like these tipping points are imminent. And stop thinking of climate change as a slow-moving, long-term threat that enables us to kick the problem down the road and let future generations deal with it. We must take immediate action to reduce global warming and fulfill our commitments to the <a href="https://www.ipcc.ch/sr15/" target="_blank" rel="noopener noreferrer">Paris Agreement</a>, and build resilience with these tipping points in mind.</p><p>We need to plan now to mitigate greenhouse gas emissions, but we also need to plan for the impacts, such as the ability to feed everyone on the planet, develop plans to manage flood risk, as well as manage the social and geopolitical impacts of human migrations that will be a consequence of fight or flight decisions.</p><p>Breaching these tipping points would be cataclysmic and potentially far more devastating than COVID-19. Some may not enjoy hearing these messages, or consider them to be in the realm of science fiction. But if it injects a sense of urgency to make us respond to climate change like we have done to the pandemic, then we must talk more about what has happened before and will happen again.</p><p>Otherwise we will continue playing Jenga with our planet. And ultimately, there will only be one loser – us.</p>
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