Jun. 23, 2017 08:57AM EST
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.
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?
The Trump administration filed a motion Tuesday seeking an appeal to the Ninth Circuit Court of Appeals on a federal judge's Nov. 10, 2016 order in Juliana v. United States. The Trump administration also filed a motion to delay trial preparation until after its appeal is considered.
Further, the Trump administration asked for expedited review of both motions, arguing the plaintiffs' Jan. 24 letter requesting the government to retain records relating to climate change and communications between the government and the fossil fuel industry was overly burdensome. The excerpt from the government's stay motion said:
"Plaintiffs … intend to seek discovery relating to virtually all of the federal government's activities relating to control of CO2 emissions ... Compounding the United States' burdens, Plaintiffs have indicated that their intended discovery has a temporal scope of more than sixty years ... Absent relief, there will most certainly be depositions of federal government fact witnesses ... that will explore the extraordinarily broad topic of climate change and the federal government's putative knowledge over the past seven decades."
Yet, in another complex case regarding the Deepwater Horizon oil spill and BP, the U.S. produced more than 17 million pages of documents from April to September of 2011. Plaintiffs maintain that their requests are limited, reasonable and aimed at getting to trial this fall.
Appeals typically do not occur until a trial court has issued final rulings following the presentation of evidence, but the Trump administration is asking federal Magistrate Judge Coffin to exercise his discretion to allow the case to proceed to the Court of Appeals before final judgment.
Attorneys representing fossil fuel industry defendants are expected to file papers supporting the government's motions on Friday.
"The Trump administration argues that this is a big case and so the burdens of preserving government documents warrant an expedited review," Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said. "They're right. It is a big case. We have a classic example of the government's misplaced priorities: They prefer to minimize their procedural obligations of not destroying government documents over the urgency of not destroying our climate system for our youth plaintiffs and all future generations?"
In the government's answer to the youth plaintiffs' complaint, they admitted that "the use of fossil fuels is a major source of [carbon dioxide] emissions, placing our nation on an increasingly costly, insecure and environmentally dangerous path."
The case was brought by 21 young plaintiffs who argue that their constitutional and public trust rights are being violated by the government's creation of climate danger. Judge Ann Aiken's November order denied motions to dismiss brought by both the Obama administration and fossil fuel industry defendants.
"This request for appeal is an attempt to cover up the federal government's long-running collusion with the fossil fuel industry," Alex Loznak, 20-year-old plaintiff and Columbia University student, said. "My generation cannot wait for the truth to be revealed. These documents must be uncovered with all deliberate speed, so that our trial can force federal action on climate change."
Other pre-trial developments
Juliana v. United States is one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, seeking science-based action by governments to stabilize the climate system.
The Oklahoma County Court on Thursday found Trump's U.S. Environmental Protection Agency (EPA) nominee Scott Pruitt in violation of the state's Open Records Act. The Center for Media and Democracy (CMD) filed a lawsuit against Pruitt for improperly withholding public records and the court ordered his office to release thousands of emails in a matter of days.
In her ruling, Judge Aletia Haynes Timmons slammed the Attorney General's office for its "abject failure" to abide by the Oklahoma Open Records Act.
The judge gave Pruitt's office until Tuesday, Feb. 21, to turn over more than 2,500 emails it withheld from CMD's January 2015 records request and just 10 days to turn over an undetermined number of documents responsive to CMD's five additional open records requests outstanding between November 2015 and August 2016.
Thursday's expedited hearing was granted after CMD, represented by Robert Nelon of Hall Estill and the ACLU of Oklahoma, filed a lawsuit that has driven unprecedented attention to Pruitt's failure to disclose his deep ties to fossil industry corporations. On Friday, Pruitt is expected to face a full Senate vote on his nomination to run the EPA.
On Feb. 10, Pruitt's office finally responded to the oldest of CMD's nine outstanding Open Records Act requests but provided just 411 of the more than 3,000 emails they had located, withholding thousands of emails relevant to the request and still failing to respond to CMD's eight other outstanding requests. On Feb. 14 CMD filed a status report with the judge detailing the scope of missing documents, including 27 emails that were previously turned over to The New York Times in 2014.
"Scott Pruitt broke the law and went to great lengths to avoid the questions many Americans have about his true motivations," said Nick Surgey, CMD's director of research. "Despite Pruitt's efforts to repeatedly obfuscate and withhold public documents, we're all wiser to his ways and the interests he really serves. The work doesn't stop here to make sure communities across the country have the information they need to hold him accountable to the health and safety of our families."
Ahead of Thursday's hearing, Senators Carper, Whitehouse, Merkley, Booker, Markey and Duckworth—all members of the EPW committee—weighed in on the case, urging the Oklahoma court to require the Office of the Oklahoma Attorney General to release documents relevant to CMD's open record requests as a matter of "federal importance." In a letter to the Oklahoma Court, the Senators stated:
"We are providing this information to the Court today because we have concluded [the] pending Open Records Act requests may be the only means by which the Senate and the general public can obtain in a timely manner critical information about Mr. Pruitt's ability to lead the EPA."
"We need to understand whether ... Mr. Pruitt engaged with the industries that he will be responsible for regulating if he is confirmed as administrator in ways that would compromise his ability to carry out his duties with the complete impartiality required."
Pruitt's continued lack of transparency extends from a difficult nomination process in which research from CMD demonstrated Pruitt's repeated pattern of obfuscating ties to deep-pocketed, corporate interests.
At his hearing before the Senate Environment and Public Works (EPW) Committee, Pruitt faced a series of questions about his private meetings with major fossil fuel companies while chair of the Republican Attorneys General Association and fundraising for the Rule of Law Defense Fund. Sen. Sheldon Whitehouse concluded his questioning telling Pruitt his testimony "just doesn't add up." Despite failing to respond to any records requests for the past two years, Pruitt told U.S. Senators last week to file more open records requests with his office to answer 19 outstanding questions from his confirmation hearing.
After Democratic Senators twice boycotted the EPW Committee vote due to concerns over Pruitt's conflicts of interests and failure to fulfill open records requests, Republicans resorted to suspending Committee rules to advance his nomination.
Pueblo, Colorado and Moab, Utah, this week became the 22nd and 23rd cities in the U.S. to commit to transition to 100 percent clean, renewable energy. The Pueblo City Council approved Monday a measure committing to power the community entirely with renewable sources of energy like wind and solar by 2035. The vote was immediately followed on Tuesday by the Moab City Council approving a resolution committing Moab to 100 percent renewable energy by 2032.
"No matter who is in the White House, cities and towns across the country will continue leading the transition to 100 percent clean, renewable energy," Sierra Club Executive Director Michael Brune said. "Pueblo and Moab join a growing movement of communities which are charting a course away from dirty fuels."
Cities like Pueblo and Moab have long suffered the consequences of dirty energy and utility reliance on fossil fuels. Pueblo, for example, has a sizable low-income population that has been suffering from the high cost of electricity due to the local utilities' decision to build new gas infrastructure and saddle the cost with ratepayers. More than 7,000 people in Pueblo have had their electricity shut off due to the high cost of electricity.
In Utah, Canyonlands National Park has been marred by haze pollution from two neighboring coal plants, which threatens the local Moab tourism industry—the economic lifeblood of the community. With this week's announcements, both communities are poised to confront these threats by transitioning away from fossil fuels to clean, renewable energy.
"The climate crisis is a global challenge, but many of our strongest leaders are at the local level," Ken Berlin, CEO of The Climate Reality Project, said. "We have a lot of hard work ahead, but it is encouraging to see more and more communities, businesses and universities understand that renewable energy is not only the right moral choice, but also the right economic choice."
Before Inauguration Day, the Trump era has opened with an extremist agenda that poses an alarming threat to our people, our environment and the core values we share about justice, fair play and our commitment to leave future generations a livable world. Already, we've seen a set of cabinet nominees dominated by fossil fuel advocates, billionaires and bankers; a president-elect who says "nobody really knows" what's happening to our climate; and a full-on witch hunt for the experts who know the truth.
This is not normal. It's the most radical approach to American governance we've seen in our lifetime. Whatever we voted on in November, nobody voted for dirty water and air. Nobody voted to walk away from climate leadership and millions of clean energy jobs. And nobody voted to hand over our country to a pollute-ocracy that puts polluter profits first—and puts the rest of us at risk.
The following list addresses some, but not all, programs, policies and initiatives the Trump administration and GOP lawmakers have targeted. This could become the worst legislative and executive assault in history against the common sense safeguards we all depend on to protect our environment and health. At risk is the water we drink, the air we breathe, our public oceans, coasts and lands and the very approach we've taken for generations in this country to protect our common inheritance.
At the Natural Resources Defense Council (NRDC), we will stand up and hold this government to account, by making sure the public understands what's at stake—for our country, our people and the common future we share.
The Clean Power Plan: The U.S. Environmental Protection Agency (EPA) set the first national standards reducing dangerous carbon pollution from our largest source, fossil fuel power plants. The Clean Power Plan provides reasonable state-specific goals for carbon cuts, flexibility for states to meet them and a federal plan that will cut a key driver of climate change 32 percent by 2030 and stimulate growth in clean energy. More here and here.
International Climate Agreement: The Paris climate agreement signed by nearly 200 nations and effective as of Nov. 4, 2016 is a global response to the threat of climate change. It aims to hold global temperature rise this century well below 2 degrees Celsius and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius. More here and here.
HFC International Commitments: In October 2016, more than 140 countries signed onto the Kigali Agreement, which calls for phasing down powerful climate-warming pollutants called hydrofluorocarbons (HFCs) under the Montreal Protocol, the treaty that saved the ozone layer. Industry supports the agreement. More here.
Reducing Methane Pollution and Natural Gas Waste in the Oil and Natural Gas Industry (BLM & EPA): These standards will reduce methane, volatile organic compounds (VOCs), and toxic air emissions from fracking and other oil and gas operations. Leaks and purposeful venting waste gas that could be sold and used while threatening health and worsening climate change. More here and here.
Restrictions on public financing for overseas coal projects: The Obama administration restricted U.S. funding for overseas coal power plants to limit climate change. This affects the Export Import Bank and other entities. More here.
Assessing Greenhouse Gas Emissions and Climate Impacts under the National Environmental Policy Act (CEQ): The White House Council on Environmental Quality issued guidance to federal agencies on analyzing the climate impacts of their proposed actions before deciding on how to proceed. More here.
During his endorsement speech, the Vermont senator said he intends to do everything in his power to ensure the former secretary of state is the next president of the U.S. Sanders began his speech by saying:
Secretary Clinton has won the Democratic nominating process, and I congratulate her for that. She will be the Democratic nominee for president and I intend to do everything I can to make certain she will be the next president of the United States.
I have come here today not to talk about the past but to focus on the future. That future will be shaped more by what happens on November 8 in voting booths across our nation than by any other event in the world. I have come here to make it as clear as possible as to why I am endorsing Hillary Clinton and why she must become our next president.
Sanders' endorsement comes less than two weeks before the Democratic National Convention. On Sunday the senator, who was in charge of picking the members of the Democratic National Convention's Platform Committee, praised the adoption of "the most progressive platform in the history of the Democratic Party," Democracy Now reported.
While Clinton wasn't known as the first pick for many environmental activists, Sanders has helped the presumptive party nominee develop a more extensive climate policy.
Throughout the primaries, Sanders helped pull Clinton and the party to the left and take stronger climate action.
"Democratic voters have been fortunate to witness a vigorous and hard-fought campaign between two candidates with a clear and progressive vision for out country—which is exactly how it should be," Michael Brune, Sierra Club executive director, said in a statement.
"Secretary Clinton and Senator Sanders made this campaign about ideas. Ideas on how to stop climate disruption while speeding our transition to clean, renewable energy and leaving fossil fuels in the ground. Ides on the importance of rejecting dangerous trade deals like the Trans Pacific Partnership. And ideas on how best to help those whose homes and lives have been wrecked by pollution."
The Sierra Club formally endorsed Clinton in June.
Not everyone was as pleased with the endorsement announcement, though. Several people took to Twitter to show their dislike of the news:
Not surprisingly, Donald Trump weighed in on the endorsement, too:
The Democratic National Convention will be held July 25-28 in Philadelphia.
It's as thick as guacamole, but you don't want it near your chips. You don't want it in your water, either, but that's exactly where it is, a sprawling mat of toxic algae the size of Miami, spreading out across Florida's storied Lake Okeechobee and from there along major rivers to the state's Atlantic and Gulf Coasts.
Lake Okeechobee's blue-green algae bloom is visible from space.National Aeronautics and Space Administration
Fish are dying. Beaches are closing. People are getting sick.
"The smell is so bad it will make you gag," Mary Radabaugh told officials at a town hall meeting last week near Palm Beach. "We have red eyes and scratchy throats."
Gov. Rick Scott has declared a state of emergency in affected areas and is pleading with Washington for assistance to cope with widespread threats to the environment and public health.
"South Florida is facing a crisis," Sen. Bill Nelson, D-FL, wrote in a letter July 6 to U.S. Senate leaders. "Beaches and waterways that would normally have been crowded this past Fourth of July weekend were empty as families and vacationers heeded warnings to avoid the toxic blue-green and brown algae blooms that have formed along the waterways and even out into the Atlantic Ocean."
The algae blooms that have thrown the Sunshine State into crisis are telling us three things. First, we need to protect our waters from the pollution that breeds these toxic blooms. Next, we need to fight the climate change that brings warmer temperatures that amp up algae growth. And finally, we need to demand real action on both fronts from our elected leaders at every level.
Algae blooms are a national problem. In recent years, we've seen them in water bodies as large as Lake Erie. There are a perennial problem near the mouth of the Mississippi River, where algae blooms strip oxygen from the water, creating a dead zone that threatens shrimp, fish, crabs and other marine life across a span of ocean the size of Connecticut in the rich fisheries of the Gulf of Mexico. They're a growing threat to our environment and health.
The immediate cause of the blooms can vary, but the common basics are these: Rains wash pollution from farms, septic tanks and other sources into our waters—from small streams and wetlands to great rivers and lakes—and municipal sewage systems add waste to these waters. These pollutants then supercharge the waters with nutrients like nitrogen and phosphorus. That feeds a population explosion for algae that feast on these nutrients. Warmer temperatures accelerate the growth.
Algae blooms, though, are toxic. Cyanobacteria is what scientists call them and they can cause skin and respiratory ailments as well as gastrointestinal and liver illness. In large doses, they can even threaten the nervous system. Humans can be affected by coming in direct contact with the algae; swallowing water at the lake, river or ocean; or even breathing water spray in which algae are growing.
These toxins threaten marine life, birds and other wildlife as well. In addition, when algae die they decay, a process that robs water of oxygen, which can cause mass fish kills. Finally, a mat of algae like the one covering much of Lake Okeechobee starves underwater plant life of needed sunlight, in turn denying food to fish and other species dependent on those plants.
The fix is to set commonsense limits that keep pollution out of our waters and then to enforce those limits. That means requiring cities and towns to do a better job treating sewage and keeping it from entering the watershed after heavy rains. It means stopping large, concentrated animal feeding operations from dumping massive amounts of waste into our waters. It means applying standards to prevent industrial agricultural operations from polluting our waters with fertilizer that runs off their fields. And it means fighting the climate change that is warming our waters, helping to turn modest seasonal algae growth into crisis-level blooms.
We just wrapped up the hottest June ever recorded in the contiguous U.S.—a blistering 3.3 degrees Fahrenheit above the 20th-century average. Last year was the hottest year globally since record keeping began in 1880 and this year's first five months have been even hotter. Nineteen of the hottest years on record have occurred in the past 20 years.
Turning this around means shifting away from the dirty fossil fuels that are driving global climate change and investing in cleaner, smarter ways to power our future without imperiling the planet. The algae blooms in Florida are a reminder of how much this matters and how urgently we must act.
When hackers broke into an Internet server at East Anglia University in the U.K. and selectively released massive amounts of correspondence from the world's leading climate scientists, folks at the Chicago-based Heartland Institute were quick to exploit it.
Heartland president Joseph Bast wrote: "The release of these documents creates an opportunity for reporters, academics, politicians, and others who relied on the IPCC to form their opinions about global warming to stop and reconsider their position."
He may have been correct, although "reconfirm" would have been a better word than "reconsider" as seven independent investigations cleared the scientists of any wrongdoing and confirmed the credibility of their research.
Now the tables have been turned on the libertarian "charitable" organization, which devotes its resources to questioning the reality of climate change and the dangers of secondhand tobacco smoke, among other issues.
Heartland is just one of many organizations dedicated to spreading doubt and confusion about legitimate science. These groups share a lack of transparency and an agenda to promote corporate interests at the expense of human health, the environment and even the economy (if we believe the economy should function primarily in the interests of citizens rather than corporations).
Recently, someone—since identified as climate scientist Peter Gleick—sent documents from the Heartland Institute's board of directors' Jan. 17 meeting to a number of people and organizations, including Desmog Blog, a website devoted to exposing the spin around climate change denial. The documents confirm much of what we already knew about Heartland, although they provide interesting details about its connections and motives.
Not surprisingly, the Heartland people don't see this as "an opportunity for reporters, academics, politicians and others" to learn more about the secretive group's agenda. Instead, Heartland posted a statement on its website saying, "honest disagreement should never be used to justify the criminal acts and fraud that occurred in the past 24 hours."
Unlike most environmental and social justice organizations, including the David Suzuki Foundation, the Heartland Institute doesn't publicly reveal information about where it gets its money and what it does with it.
These documents indicate that Heartland has offered U.S. weatherman blogger and climate change denier Anthony Watts close to $90,000 for a new project. They also reveal that Heartland funds other prominent deniers, including "Craig Idso($11,600 per month), Fred Singer ($5,000 per month, plus expenses), Robert Carter ($1,667 per month) and a number of other individuals..."
The papers also confirm that the institute's primary mission is to discredit the established science of human-caused climate change. And even though it has received funding from wealthy individuals and corporations in the fossil fuel and tobacco industries, including the Koch brothers and RJR Tobacco, it gets most of its money from a single anonymous donor, who has ponied up as much as $4.6 million in a single year, 2008.
If these groups were truly engaged in questioning the science, using valid scientific methods and principles, it wouldn't be a problem. Science is strengthened through scrutiny and challenges; that's how it works, and that's what the peer-review process is about. But these organizations are engaged in secretive and dishonest lobbying and public-relations efforts aimed at stalling measures to protect the environment and health.
Gleick has admitted that he made a mistake in posing as someone else to obtain the documents. The unidentified East Anglia hackers were also wrong to have stolen the emails, and the Heartland Institute is wrong when it lies about the most serious threat to humanity.
Three wrongs don't make a right, but there are some differences. In the East Anglia case, the investigations turned on those who were hacked and ultimately proved that the climate scientists, although human, are engaged in sound and verifiable science and that they have been subjected to years of harassment and bullying for their work. The Heartland documents show that the organization is using its taxpayer-supported status to spread lies and misinformation.
It's about time these merchants of doubt were exposed. It's time to get back to real science as practiced by scientists. We must get beyond the false debate about the reality of climate change and into the real debate about what to do about it.