This is a replica of a comment I made at another site. As of 23:55 EST on 21st January, it hasn’t been release from moderation. Perhaps the moderator is busy. I do not know. I am proceeding as if it will not be released, because I will be too busy during the next week or so to monitor.
I am posting this as an expansion of an opinion I offered in public a few months ago, unable to include these ideas because the opinion was strongly constrained by time.
[From a fellow Commentor:]
So, who IS going to fix it? Oh, wait—-I know—-the free market that gave us the problem in the first place!
I’m hoping that the judiciary, via the Public Trust doctrine, might force the government to fix this. Professor Mary Wood’s book, Nature’s Trust, makes it very clear that Executive branch agencies entrusted with the preservation of the natural world become a licensing mechanism for permitting its wholesale destruction, in large measure, as you imply, by the “free market forces” leaning upon government. But that behavior appears ingrained in the Executive, and it doesn’t know how or what else to do without a guiding constraint. They’d do it, in other words, even without the lobbying lean, simply because there are non-business, non-corporate constituencies out there who don’t like to be constrained. Plenty of examples in the book. The American University Law Review article is a good synopsis.
But, there is an aspect to notions of harm in case law which suggests that if a condition is shared by a large population, and, in this case, all the population, there is no standing to sue. The harm must be differentiated and special. This aspect is what darkens my view of this avenue. If we get that far, the other darkening comes from the likelihood that the remedy Juliana seeks would be granted in a form which has any resemblance to the original.
As I have said publicly,
For should the plaintiffs of Juliana fail, the last government branch, the judiciary, abdicates responsibility for solving this urgent problem. And so the Constitution will have failed one of its existential requirements: To provide for the common defense. For Nature has laws, too, and we have been breaking them for a long time, ever more intensely. But Nature does not have courts of grievance or redress. Nature just acts. In a catastrophic sea level rise, perhaps triggered by a collapse of a distant ice sheet, Moakley Courthouse itself, the land you stand on would be lost, and all that there [City of Boston]. While disappointing, were Juliana to be overturned, this should not be a reason for despair. It would not mean the Constitution should be replaced. It would just mean it is useless for solving certain kinds of critically important problems. Its failure would imply the Constitution is becoming a dusty, old thing, irrelevant, like the Articles of Confederation are to us, a ceremonial relic. Let’s hope not.
There will be solutions for solving climate in any case, Constitution or not. They may well be horrifically expensive. And, while there’s no solution without first zeroing emissions, solutions will exist. These will lie beyond the Constitution, I hope Chief Justice Roberts and his colleagues understand the import of that.
Solutions “beyond the Constitution” are solutions where global economic interests decide that climate change must be stopped, for their business is being harmed and their wealth is being lost. The “free market” is no more monolithic than any other group or section of human behavior or collective, and for every company which profits from sale of fossil fuels and use of atmosphere for sewer, there are three or more which simply use them as a means to an end. If a product harms during its use, and the buyer is not forewarned, the buyer, whether individual or corporation, has every right to pursue damages from the purveyor. Beyond that, the buyers have every motivation to band together with the similarly harmed and devise a means of fixing the situation.
The trouble, of course, is to the degree these remedies are extra-governmental and extra-Constitutional, these
agents governments have little opportunity to steer these remedies. They might have steered, by participating early on, but the governments, listening to @Gingerbaker’s “Us” chose to pursue the comfortable, uncontroversial paths. To the extent governments cannot fix the problem without the consortium of collective buyers, they’re stuck. This is unfortunate. But this is what happens when fundamental responsibilities are repudiated.
Professor Dan Farber has recently offered his opinion of the status of Juliana. He’s an attorney. I’m not.