By Melissa Powers, Center for Progressive Reform
As Juliet Eilperin, Brady Dennis, and Chris Mooney of The Washington Post reported on September 27, the Trump administration seems to finally be acknowledging that climate change is real. But the motivation for recognizing that reality is cynical, at best, so rather than proposing doing something – anything – about climate change, the administration concludes we shouldn’t bother trying.
Buried in a 500-page justification for a rule that would prevent California (and, by extension, other states) from regulating emissions of greenhouse gases from new vehicles, the National Highway Traffic Safety Administration (NHTSA) states that any regulation of greenhouse gases would be futile because climate models show that global temperatures will increase by up to 7 degrees Fahrenheit no matter how the United States behaves.
For years, many conservatives have denied that climate change is real and that humans have caused climate change by burning fossil fuels. Even as global temperatures have climbed to unprecedented levels, ice sheets have begun to fracture, hurricanes have become stronger and wetter, and droughts and wildfires have become increasingly prevalent, conservatives have pushed back against any link between fossil fuels and our changing climate – all in service of making sure we do nothing about it.
Donald Trump took climate-change denial to new levels during the 2016 campaign, claiming that climate change is a “hoax” perpetuated by the Chinese to somehow weaken our economy. Following through on the “hoax” dodge, the Trump administration has pursued a strategy of rolling back scores of Obama-era environmental regulations, including nearly all of the Obama administration’s standards to reduce greenhouse gas emissions. Suddenly, however, NHTSA has offered a new rationale for the rollbacks: not only is climate change real, it’s now unstoppable – and any effort to regulate greenhouse gas emissions is futile.
It’s hard to imagine a more cynical reversal in positions. But this reversal is more than just cynical. It could be the opening salvo of a downright malevolent effort to prevent states and concerned citizens from challenging the Trump administration’s anti-environmental regulations in court. Under Supreme Court precedent, parties must demonstrate they have “standing” to sue in federal court. To demonstrate standing to challenge a federal agency action, a party must show that it has suffered an “injury in fact” that is caused by the agency action and that a federal court can remedy (or “redress”), at least in part, that injury.
In the case of climate change-related injuries, the Supreme Court in 2007 held that states and private parties had standing to challenge the Bush administration’s refusal to regulate greenhouse gases from motor vehicles because the state of Massachusetts had demonstrated the required injury, causal connection, and redressability. Specifically regarding the Court’s ability to issue a decision that would redress Massachusetts’s injuries (actual and future property losses from sea level rise, among others), Justice John Paul Stevens wrote that incremental progress toward addressing climate change was sufficient for standing purposes.
The Trump administration’s cynical claim that incremental efforts are futile could become the new strategy for the federal government and other polluters to deny states and concerned citizens access to the courts. Some lower courts have already intimated that climate change is not redressable; the Trump administration’s new line of reasoning may soon be used to give courts the justification industry and its political allies have long sought to keep climate change out of our judicial system.
The administration’s cynical reversal in its positions is also, unsurprisingly, counter to science. Multiple studies demonstrate that we still have time to prevent runaway climate change, but they also show that we must act quickly to drastically reduce greenhouse gas emissions in the United States and around the world.
So after maintaining for years that climate change is not real, President Trump now wants us to accept that it’s not only real, but a lost cause. States and concerned citizens should be prepared to show the courts why that cynical view is wrong.