WATCH LIVE: Can the Courts Bring About a Climate Fix? Three Judges Are About to Decide
By John Light
Editor's note: Watch the oral arguments live beginning at 1 p.m. EST above.
Three judges in San Francisco potentially have the power to decide how the U.S. government deals with climate change. Monday, 21 young Americans will make the case that President Trump has endangered their future by aiding and abetting the dirty industries responsible for the global crisis. And they will argue that they can hold him legally accountable.
Trump and his predecessors in the Oval Office, these young Americans claim, have not only let climate change occur, they've encouraged it. Despite research going back to the mid-20th century that pumping carbon dioxide into the atmosphere would destabilize the climate, they say the government incentivized the companies that did so through such programs as fossil-fuel subsidies.
Thery further attest that Donald Trump has upped the ante, with his administration outlining plans to lend a helping hand to the coal companies whose CEOs have donated to his campaign—regardless of the dirty fuel's dim future prospects—and promoting fossil fuels internationally.
The 21 young plaintiffs originally filed their suit against President Obama in 2015, but Trump inherited it, and Justice Department lawyers quickly redoubled efforts begun by the Obama administration to have the case dismissed.
Whether they can will be decided following Monday's hearing: A lower court is set to hear the youth's arguments in February, and the Trump administration has appealed to a higher court, the 9th Circuit, to throw the case out before it goes to trial.
In November 2016, days after the election, District Court Judge Ann Aiken allowed the case to proceed. The Trump administration's decision to ask a higher court to weigh in is highly unusual.
But so, too, is the young plaintiffs' suit, which seeks a judicial solution to climate change, a crisis that is growing increasingly urgent and that the other branches of the government have failed to adequately address. The suit argues both that the government cannot put kids in harm's way by encouraging fossil-fuel production, but also that the earth's atmosphere is a public trust that the government has failed to protect.
U.S. Deputy Assistant Attorney General Eric Grant, who was appointed to work in the Justice Department's Environment and Natural Resources Division last April, will be representing the government. Grant replaces Jeffrey Wood, an acting assistant attorney general and former coal lobbyist who was working on the case last spring. Formerly a California-based lawyer, Grant clerked for conservative Supreme Court Justice Clarence Thomas and the late Chief Justice Warren Burger.
Three fossil-fuel industry lobbying groups, meanwhile, have quit the suit. After the young plaintiffs filed their initial lawsuit against the Obama administration in 2015, the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and the National Association of Manufacturers joined as co-defendants, challenging the case in court. But after November 2016, when a court gave the plaintiffs the green light to proceed to trial, the lobbying groups bailed, claiming that the Trump administration would more adequately defend their interests than the Obama administration.
Interestingly, although Trump himself has spoken extensively of his doubts on climate change ("global warming hoax," etc.), his legal team assigned to this case has not denied the reality of the threat during recent proceedings. Instead, they've sought to wriggle out of the case on the grounds that what the young people are asking for—both in terms of their legal remedy and in terms of discovery—is overly broad. The U.S. may be a rogue state when it comes to climate change—the only one no longer on board with the Paris agreement—but, the government's attorneys argue, that's not their problem. The Constitution, they say, says nothing about climate change.
In its briefing to the court last June, the government wrote:
The Supreme Court has recently emphasized how, under established separation-of-powers principles, Congress, through legislation, defines the EPA's authorities and duties regarding the control of greenhouse gas emissions, while the executive executes them … There is no room in the constitutional structure for a federal court to take on the role of overseeing the propriety of all governmental actions that may be viewed as contributing to the buildup of CO2 in the atmosphere.
But the government's approach to the case may change. As E&E News reported earlier this month, the Justice Department has been speaking with scientists who have been critical of the case or who have expressed dissenting views on climate change, which may indicate DOJ lawyers plan to put on trial the science behind climate change.
The suit also comes at a time when the lack of a presidential or legislative response to climate change has made the U.S. unique in a world that has at least acknowledged the necessity of action. As a result, environmentalists and legal scholars alike increasingly look to the courts for a solution. Judge Ann Aiken's decision to let the suit proceed, days after Trump won election, "was a ray of sunshine in what was a very dark day for the environmental community," Michael Burger, the executive director of Columbia University's Sabin Center for Climate Change Law, told BillMoyers.com.
Trump's climate change-blind policies could "make it more likely the courts will step into this situation," David Bookbinder, chief legal counsel for the libertarian Niskanen Center, told Bloomberg Environment. Trump's election, lead plaintiff Kelsey Juliana told us in May, "has really lifted our case up and given our case even more importance and urgency."
In the short term, it comes down to the three 9th Circuit judges who will hear the case Monday. Two are Clinton nominees, and the third, Alex Kozinski, is a Reagan nominee. It's unclear what effect, if any, allegations of inappropriate sexual misconduct by six court staffers against Kozinski, reported by The Washington Post Friday, will have on the hearing.
John Light is a reporter and producer for the Moyers team. His work has appeared at The Atlantic, Grist, Mother Jones, Salon, Slate, Vox and Al Jazeera, and has been broadcast on Public Radio International. He's a graduate of Columbia Graduate School of Journalism. You can follow him on Twitter at @LightTweeting.
Reposted with permission from our media associate Moyers & Company.
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By Bob Jacobs
Hanako, a female Asian elephant, lived in a tiny concrete enclosure at Japan's Inokashira Park Zoo for more than 60 years, often in chains, with no stimulation. In the wild, elephants live in herds, with close family ties. Hanako was solitary for the last decade of her life.
Hanako, an Asian elephant kept at Japan's Inokashira Park Zoo; and Kiska, an orca that lives at Marineland Canada. One image depicts Kiska's damaged teeth. Elephants in Japan (left image), Ontario Captive Animal Watch (right image), CC BY-ND
Affecting Health and Altering Behavior<p>It is easy to observe the overall health and psychological consequences of life in captivity for these animals. Many captive elephants suffer from arthritis, obesity or skin problems. Both <a href="https://doi.org/10.11609/JoTT.o2620.1826-36" target="_blank">elephants</a> and orcas often have severe dental problems. Captive orcas are plagued by <a href="https://doi.org/10.1016/j.jveb.2019.05.005" target="_blank">pneumonia, kidney disease, gastrointestinal illnesses and infections</a>.</p><p>Many animals <a href="https://doi.org/10.1016/j.neubiorev.2017.09.010" target="_blank">try to cope</a> with captivity by adopting abnormal behaviors. Some develop "<a href="https://doi.org/10.1016/j.applanim.2017.05.003" target="_blank" rel="noopener noreferrer">stereotypies</a>," which are repetitive, purposeless habits such as constantly bobbing their heads, swaying incessantly or chewing on the bars of their cages. Others, especially big cats, pace their enclosures. Elephants rub or break their tusks.</p>
Changing Brain Structure<p>Neuroscientific research indicates that living in an impoverished, stressful captive environment <a href="https://doi.org/10.1016/j.jveb.2019.05.005" target="_blank" rel="noopener noreferrer">physically damages the brain</a>. These changes have been documented in many <a href="https://doi.org/10.1002/cne.903270108" target="_blank" rel="noopener noreferrer">species</a>, including rodents, rabbits, cats and <a href="https://doi.org/10.1006/nimg.2001.0917" target="_blank" rel="noopener noreferrer">humans</a>.</p><p>Although researchers have directly studied some animal brains, most of what we know comes from observing animal behavior, analyzing stress hormone levels in the blood and applying knowledge gained from a half-century of neuroscience research. Laboratory research also suggests that mammals in a zoo or aquarium have compromised brain function.</p>
This illustration shows differences in the brain's cerebral cortex in animals held in impoverished (captive) and enriched (natural) environments. Impoverishment results in thinning of the cortex, a decreased blood supply, less support for neurons and decreased connectivity among neurons. Arnold B. Scheibel, CC BY-ND<p>Subsisting in confined, barren quarters that lack intellectual stimulation or appropriate social contact seems to <a href="https://doi.org/10.1590/S0001-37652001000200006" target="_blank" rel="noopener noreferrer">thin the cerebral cortex</a> – the part of the brain involved in voluntary movement and higher cognitive function, including memory, planning and decision-making.</p><p>There are other consequences. Capillaries shrink, depriving the brain of the oxygen-rich blood it needs to survive. Neurons become smaller, and their dendrites – the branches that form connections with other neurons – become less complex, impairing communication within the brain. As a result, the cortical neurons in captive animals <a href="https://doi.org/10.1002/cne.901230110" target="_blank">process information less efficiently</a> than those living in <a href="https://doi.org/10.1002/dev.420020208" target="_blank">enriched, more natural environments</a>.</p>
An actual cortical neuron in a wild African elephant living in its natural habitat compared with a hypothesized cortical neuron from a captive elephant. Bob Jacobs, CC BY-ND<p>Brain health is also affected by living in small quarters that <a href="https://doi.org/10.3233/BPL-160040" target="_blank">don't allow for needed exercise</a>. Physical activity increases the flow of blood to the brain, which requires large amounts of oxygen. Exercise increases the production of new connections and <a href="http://dx.doi.org/10.1126/science.aaw2622" target="_blank">enhances cognitive abilities</a>.</p><p>In their native habits these animals must move to survive, covering great distances to forage or find a mate. Elephants typically travel anywhere from <a href="https://www.elephantsforafrica.org/elephant-facts/#:%7E:text=How%20far%20do%20elephants%20walk,km%20on%20a%20daily%20basis." target="_blank">15 to 120 miles per day</a>. In a zoo, they average <a href="https://doi.org/10.1371/journal.pone.0150331" target="_blank" rel="noopener noreferrer">three miles daily</a>, often walking back and forth in small enclosures. One free orca studied in Canada swam <a href="https://doi.org/10.1007/s00300-010-0958-x" target="_blank" rel="noopener noreferrer">up to 156 miles a day</a>; meanwhile, an average orca tank is about 10,000 times smaller than its <a href="https://www.cascadiaresearch.org/projects/killer-whales/using-dtags-study-acoustics-and-behavior-southern" target="_blank" rel="noopener noreferrer">natural home range</a>.</p>
Disrupting Brain Chemistry and Killing Cells<p>Living in enclosures that restrict or prevent normal behavior creates chronic frustration and boredom. In the wild, an animal's stress-response system helps it escape from danger. But captivity traps animals with <a href="https://doi.org/10.1073/pnas.1215502109" target="_blank">almost no control</a> over their environment.</p><p>These situations foster <a href="https://doi.org/10.1037/rev0000033" target="_blank">learned helplessness</a>, negatively impacting the <a href="https://doi.org/10.1155/2016/6391686" target="_blank" rel="noopener noreferrer">hippocampus</a>, which handles memory functions, and the <a href="https://doi.org/10.1016/j.neuropharm.2011.02.024" target="_blank" rel="noopener noreferrer">amygdala</a>, which processes emotions. Prolonged stress <a href="https://doi.org/10.3109/10253899609001092" target="_blank" rel="noopener noreferrer">elevates stress hormones</a> and <a href="https://doi.org/10.1523/JNEUROSCI.10-09-02897.1990" target="_blank" rel="noopener noreferrer">damages or even kills neurons</a> in both brain regions. It also disrupts the <a href="https://doi.org/10.1016/j.neubiorev.2005.03.021" target="_blank" rel="noopener noreferrer">delicate balance of serotonin</a>, a neurotransmitter that stabilizes mood, among other functions.</p><p>In humans, <a href="https://doi.org/10.1006/nimg.2001.0917" target="_blank" rel="noopener noreferrer">deprivation</a> can trigger <a href="https://doi.org/10.3389/fnins.2018.00367" target="_blank" rel="noopener noreferrer">psychiatric issues</a>, including depression, anxiety, <a href="https://doi.org/10.3389/fnins.2018.00367" target="_blank" rel="noopener noreferrer">mood disorders</a> or <a href="https://doi.org/10.1177/1073858409333072" target="_blank" rel="noopener noreferrer">post-traumatic stress disorder</a>. <a href="https://doi.org/10.1007/s00429-010-0288-3" target="_blank" rel="noopener noreferrer">Elephants</a>, <a href="https://doi.org/10.1371/journal.pbio.0050139" target="_blank" rel="noopener noreferrer">orcas</a> and other animals with large brains are likely to react in similar ways to life in a severely stressful environment.</p>
Damaged Wiring<p>Captivity can damage the brain's complex circuitry, including the basal ganglia. This group of neurons communicates with the cerebral cortex along two networks: a direct pathway that enhances movement and behavior, and an indirect pathway that inhibits them.</p><p>The repetitive, <a href="http://dx.doi.org/10.1016/j.bbr.2014.05.057" target="_blank">stereotypic behaviors</a> that many animals adopt in captivity are caused by an imbalance of two neurotransmitters, dopamine and <a href="https://doi.org/10.1016/j.neubiorev.2010.02.004" target="_blank" rel="noopener noreferrer">serotonin</a>. This impairs the indirect pathway's ability to modulate movement, a condition documented in species from chickens, cows, sheep and horses to primates and big cats.</p>
The cerebral cortex, hippocampus and amygdala are physically altered by captivity, along with brain circuitry that involves the basal ganglia. Bob Jacobs, CC BY-ND<p>Evolution has constructed animal brains to be exquisitely responsive to their environment. Those reactions can affect neural function by <a href="https://www.penguinrandomhouse.com/books/311787/behave-by-robert-m-sapolsky/" target="_blank">turning different genes on or off</a>. Living in inappropriate or abusive circumstance alters biochemical processes: It disrupts the synthesis of proteins that build connections between brain cells and the neurotransmitters that facilitate communication among them.</p><p>There is strong evidence that <a href="https://doi.org/10.1523/JNEUROSCI.0577-11.2011" target="_blank">enrichment</a>, social contact and appropriate space in more natural habitats are <a href="https://doi.org/10.1111/j.1748-1090.2003.tb02071.x" target="_blank" rel="noopener noreferrer">necessary</a> for long-lived animals with large brains such as <a href="https://doi.org/10.1371/journal.pone.0152490" target="_blank" rel="noopener noreferrer">elephants</a> and <a href="https://doi.org/10.1080/13880292.2017.1309858" target="_blank" rel="noopener noreferrer">cetaceans</a>. Better conditions <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5543669/" target="_blank" rel="noopener noreferrer">reduce disturbing sterotypical behaviors</a>, improve connections in the brain, and <a href="https://doi.org/10.1038/cdd.2009.193" target="_blank" rel="noopener noreferrer">trigger neurochemical changes</a> that enhance learning and memory.</p>