There’s a newly discovered fundamental right, rendered out of thin air by a federal district court in Oregon (yes, the Ninth Circuit, again!), and it threatens to undermine the entire architecture of the U.S. Constitution.
The plaintiffs in a climate change lawsuit are 21 children and young adults ranging in age from 9 to 20. Under the banner of the ultra-left Our Children’s Trust, the kids have asked the court to order the entire Executive branch to essentially ban nearly all global man-made carbon dioxide emissions and phase out all fossil fuel in order to "remediate" the climate. As ludicrous as this sounds, there is something far more damaging at play in this case.
According to a federal magistrate judge, and endorsed by a federal district court judge, this children’s crusade has won a critical victory even before a full trial and appeal — the fundamental "right" to "a climate system capable of sustaining human life." Under a tortured Due Process analysis, the two judges have declared that the claims are entitled to "strict scrutiny," the toughest judicial standard available. Why find a new right? Because the claims wouldn’t have survived the court’s lowest standard of review — rational basis. After all, the plaintiffs are demanding that the court order the Executive branch to make law, a job reserved for Congress under Article I of the U.S. Constitution.
In short, strict scrutiny means the burden of proof shifts from the plaintiffs to the defendants. The Executive branch has to prove it did not infringe on this new constitutional right — the equivalent of a bank manager having to prove she did not encourage the armed robber to wave a gun at bank patrons.
The climate change "injuries" the children claim range from a home basement being flooded in a storm, to the installation of an irrigation ditch on a farm due to drought. So, the remedies sought should be equally manageable, right? On the contrary — the remedies sought include a court order mandating that the Executive branch adopt and implement a policy that leads to the elimination of the use of fossil fuels, among other trillion-dollar leviathans. The kids are literally asking the court to be judge, lawmaker, and chief executive.
The stakes couldn’t be higher — a federal court creating a new fundamental right, and legal claims that call on the Executive branch to violate the Constitution. This may be the most dangerous litigation in America. Here’s why:
In his 1980s song, "Children’s Crusade," musician Sting wrote, "Pawns in the game are not victims of chance." Organized, funded and represented by Our Children’s Trust, the kids’ lawsuit is a blueprint for what we can expect in the post-Obama era. Well-organized international funders, working together in a complex web of both publicly disclosed and "dark" money sources — many of whom stand to gain financially with dramatic government moves to tax carbon emissions and compel so-called "clean energy" technology in place of fossil fuels — utilize the full array of non-profit advocacy and political influence groups to force change through the regulatory process and in the courts.
During the Obama years, environmental groups and the U.S. Environmental Protection Agency (EPA) traded employees like baseball cards, creating a cozy relationship that resulted in lawsuits brought by the groups that were simply not defended by the EPA. A federal judge would approve a settlement reached by the groups and the EPA, thereby creating a new regulation and law. The tactic is known as "sue and settle," and it resulted in such non-regulatory, non-legislative actions as the so-called "Clean Power Plan." Congress never approved it; the agency never submitted it to the administrative review process.
With the Trump administration in place, the cozy relationship and revolving employment door are ostensibly closed. Sweetheart lawsuit deals are not likely to continue with EPA and the U.S. Department of the Interior, for example.
But the new litigation strategy is to bring sweeping claims against the government (in the kids’ lawsuit case, eight federal agencies and the president himself are named as defendants), filed in the most liberal jurisdictions that can be found, with the hope that an activist judge will "discover" new rights and acknowledge outrageous and novel claims. This is known as legislating from the bench.
In the kids’ case, the federal judges have certainly delivered the goods so far. If the claims are successful, a federal judge will order the Executive branch to make new law, an abomination of the separation of powers. If the claims are not successful, the radical environmental tacticians and their shadowy financial backers will have learned lessons for the next raft of lawsuits. Either way, constitutional checks and balances are in trouble.
Note: This article has been modified for clarity.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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