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The Lure of Judicial Activism for Environmental Extremists

natural gas industry

Keep It Grounded In Fact
(American Fuel & Petrochemical Manufacturers)


Fractivists and other “keep-it-iin-the-ground” folks cannot resist the lure of judicial activism and neither can some judges, which is why they pursue it.

When it comes to legal strategy, the “Keep It in the Ground” folks are taking their cue from Frank Sinatra’s hit song “High Hopes” about a “silly old ram [who] thought he’d punch a hole in a dam.”  Against all logic and multiple courtroom losses, they keep launching the same fatally flawed argument—that the courts should dictate climate policy—hoping to bust through that “billion-kilowatt dam.”

Yesterday, they took another blow when King County Superior Court Judge Michael Scott granted Washington State’s motion to dismiss yet another climate change lawsuit brought by youth advocates.

judicial activism

In his decision, Judge Scott concluded that “the issues involved in this case are quintessentially political questions that must be addressed by the legislative and executive branches of government. These issues cannot appropriately be resolved by a court.”

This rationale has become a common refrain for the “Keep It in the Ground” folks, who have also heard it from federal judges dismissing climate change cases brought by cities against oil and natural gas companies.

In dismissing the cases brought by Oakland and San Francisco in June, Judge William Alsup of the Northern District of California wrote that “there are sound reasons why regulation of the worldwide problem of global warming should be determined by our political branches, not by our judiciary.”

John F. Keenan, U.S. District Court judge for the Southern District of New York, similarly noted “Global warming and solutions thereto must be addressed by the two other branches of government” when dismissing New York City’s case last month.

When judges from sympathetic states like California, New York, and Washington all refute a legal argument using the same grounds, most people would go back to the drawing board.

But the “Keep It in the Ground” crew is nothing if not dogged. Our Children’s Trust—the organization that drove the Washington state lawsuit—is continuing to pursue eight other nearly identical state lawsuits as well as a federal case, Juliana v. United States.

Procedurally they are having better luck at the federal level than they did in Washington state. Judges have repeatedly denied the Trump Administration’s motions to dismiss, and Juliana is currently scheduled to go to trial on October 29, 2018.

And it will only take one instance of judicial activism to bust open the litigation dam, which is why the activists have such high hopes.

Editor’s Note: That last paragraph captures the essence of what environmental extremism is all about; challenging the law repeatedly and as long as it takes until it gives somewhere. This is what the CELDF strategy is at its root. It’s what the Delaware Poveretykeeper a/k/a Riverkeeper is doing with William Penn Foundation money. It’s what the Clean Air Council is doing with Heinz Endowments money. It’s a weakening and erosion strategy that ultimately only gets defeated when it’s crushed by an offense.

That offense is part economic in the sense that continued economic progress through natural gas and oil development weakens its opponents. There must be a legal part as well, though. The legal strategy must be to go after these offenders—both the funders and their hired shills—for grossly violating tax exemption rules and engaging in RICO-type conspiracies to advance their special financial and other interests. Where are the legal challenges? Where are the lawsuits? Where is the offense? Where is Congress on restricting the ability of individual Federal District Court judges to set national policy through decisions going far beyond their legal judicial reach?

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