Federal Judge Dismisses Climate Lawsuit In Montana – CleanTechnica

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A month ago, a group of young plaintiffs filed suit in federal court in Montana seeking to block the implementation of three executive orders that promote the use of fossil fuels under the guise of a mythical “energy emergency.” Those plaintiffs were guided by attorneys from Our Children’s Trust, a public interest law firm that specializes in climate litigation. It was directly involved in Juliana Vs US and the climate litigation at the state level in Montana. It is also representing young plaintiffs in Wisconsin.

Our Children’s Trust describes itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate. We work to protect the Earth’s climate system for present and future generations by representing young people in global legal efforts to secure their binding and enforceable legal rights to a healthy atmosphere and stable climate, based on the best available science.”

It represented a group of young plaintiffs who sued the state of Montana to enforce its constitutional guarantee of a clean and healthy environment and won. They also have filed suit in Wisconsin, claiming the permitting process for new energy installations illegally favors fossil fuels. That suit is pending.

Executive Orders Under Attack In Montana

But the suit filed in federal court in Montana last month was novel in that it asked the court to issue an injunction that would prohibit the administration from enforcing three executive orders.

“At a time when we need to reduce fossil fuel reliance, the federal government is actively setting us back with these executive orders designed to unleash fossil fuels,” Georgi Fischer, a plaintiff in the case, told The Guardian. “It’s incredibly important for us to fight back against these unconstitutional attacks on our rights to life and liberty.”

At a preliminary hearing, some of the plaintiffs gave testimony to the court and were joined on the stand by five expert witnesses and six fact witnesses, including Columbia environmental economist Geoffrey Heal, Stanford University civil and environmental engineering professor Mark Jacobson, global ecology expert Steven Running, and John Podesta, former White House senior advisor on clean energy under Joe Biden.

“I’m proud to speak on behalf of these young plaintiffs about the devastating impact of these executive orders,” Podesta said in a statement. “The plaintiffs make a compelling case that these orders will only make the climate crisis worse, putting at risk the health, safety, and economic well-being of these young people as well as their families and communities.”

US District Court Judge Dana Christensen was clearly uncomfortable with the proceedings in his courtroom, which involve a confluence of many legal theories, some dating back to the creation of the Constitution itself. “What is it you want me to do?” he asked the attorneys for the plaintiffs. The judge indicated he would act cautiously in a matter that is surely going to be heard by a federal appeals court at the very least and probably by the US Supreme Court as well.

According to the Daily Montanan, the judge said, “If I enjoin these orders, and these defendants enact policies favoring fossil fuels regardless of my enjoining the executive orders, what do I do then? Many things done by these agencies … appear to be derived from or based on these orders. … Do you want me to enjoin these agency actions as well?”

Julia Olsen, the lead attorney for the plaintiffs, said the goal was to revert the country to a “status quo” that existed on January 19, the day before the three executive orders at issue were signed. “The entire body of conduct should be enjoined, because it’s unconstitutional and is causing irreparable harm to these plaintiffs.”

Christensen was skeptical, saying if he granted the injunction sought by the plaintiffs, that could make it necessary for him to review every energy-related policy and action taken by numerous government agencies “until the expiration of our collective lifetimes.”

Judge Dismisses Climate Lawsuit In Montana

This week, Judge Christensen issued his ruling, in which he dismissed the plaintiffs’ complaint, although he said he did so “reluctantly.” He said he found the testimony presented by the plaintiffs was persuasive and showed that the executive orders would hasten climate change and exacerbate risks to the plaintiffs’ health and safety.

But he ruled the plaintiffs lacked a legal basis to bring the suit, largely because the harms they described could not be ameliorated by a judicial decision, according to reporting by the New York Times. The suit was simply too broad in scope and too amorphous to be actionable, he said. “Plaintiffs are effectively asking that this court order the United States to return to the environmental policy of the previous administration,” he wrote.

The request for an injunction to block the three executive orders would require the court to monitor “an untold number” of federal agencies and determine whether their actions went against the court’s ruling. “This is, quite simply, an unworkable request for which plaintiffs provide no precedent,” the judge wrote.

In other words, the plaintiffs’ won the argument but lost the legal battle. This was not unexpected. The constitutional framework the US has operated under for the past nearly 250 years gives Congress the power to make the laws and the Executive the power to enforce the laws. The power of courts is limited to interpreting the laws. At least, that is the way Ben Franklin and his buddies envisioned things.

But Ben was a crafty old dude and knew there would be those who would try to bend and twist the Constitution to favor them over others. He told people after the Constitution was drafted that the framers had given the people a republic, then added, “If you can keep it.”

Today, a half century long process spearheaded by Charles and David Koch to bend the Constitution to their will has succeeded. Congress has willingly abdicated its authority under the Constitution to the Executive and the Supreme Court is now packed with right wing extremists also who believe the Executive branch is all powerful. Judge Christensen didn’t need a weatherman to know which way the winds are blowing in America.

He is correct that any court will shrink from deciding a case in a way that cannot be enforced. But the judge did have a lever available to him. When the US was created, it adopted British common law as the basis of the legal system for the new country.

The Origins Of Equity Power

Legal scholars know that at certain times in British history, the law courts became immersed in minutia to the point where justice was often denied because the process was so convoluted that litigants were required to endure years of delay. To counter the hidebound law courts, people began turning to ecclesiastical courts for relief.

While those courts theoretically dealt only with religious doctrine, they created the notion of equity — the idea that the law should do more than interpret arcane statutes, it should also dispense justice. It is the basis of the dictum “equal justice under law” and it is where the power of courts to issue injunctions, restraining orders, and writs of mandamus originated.

In other words, equity is the source of the power of the courts to require others to act or refrain from acting if doing so would be unjust. Judge Christensen could have invoked the inherent equity power of the court to find the executive orders violated the underlying basis of laws in America. There is an expression lawyers are familiar with that says, “In order to receive equity, one must first do equity. Loosely translated, it means you can’t murder your parents and then beg for mercy because you are an orphan.

The current administration has murdered democracy and deserves no consideration from the courts until it atones for its egregious and outrageous conduct. If I were in Judge Christensen’s position, I would probably rule the same way he did. It is safe and sane.

But a courageous judge would invoke the court’s equity power to strike down executive orders that are manifestly unfair and unjust. The court has the inherent power to create an instrumentality of the court, composed of people hired by the court, to administer and enforce its decision. In a perfect world, that is precisely what would happen.