Litigation may be as American as apple pie, but some lawsuits are so destructive that they stand out even among the hugely expensive wreckage wrought by our legal system.
The most prominent current example is the “children’s” climate lawsuit (Juliana v the U.S.): A group of kids, including “future generations, through their guardian Dr. James Hansen,” claim that the government’s actions and failures to act have caused climate change, thus violating the youngest generation’s constitutional rights to life, liberty, and property, and have failed to protect essential public trust resources.
I leave the numerous legal issues to the lawyers, although precisely how the ineffable Hansen came to be the “guardian” for future generations is a question both fascinating and amusing.
Instead, it is crucial to recognize first that the fundamental policy assumption underlying this lawsuit — we can make “the children” better off by making them poorer — is preposterous.
More generally, the lawsuit is a blatant attempt to circumvent democratic processes, in terms of both the Congressional power to make policy and the authority of the president to implement it.
Climate policies — mandated reductions in greenhouse gas (GHG) emissions — by and large are energy policies, and the constitution is silent on which such policies would serve the interests of future generations, or on the appropriate tradeoffs between the interests of “the children” and the adults alive in the here and now.
Those are policy questions, and this attempt to induce judges to interfere with Congress’ legislative powers is deeply destructive of our constitutional institutions.
Should “the children” not be concerned about that? Why are “the children” not suing about, say, the national debt?
Second, the claim about the protection of “essential public trust resources” boils down to an assertion that carbon dioxide is a “pollutant.”
No, it is not: A certain minimum atmospheric concentration of it is necessary for life itself. (Merely look at NASA’s time-lapse photo of the earth’s greening over the last 30-plus years.)
By far the most important GHG is water vapor; does anyone claim that it is a “pollutant?” Obviously not, and not because ocean evaporation is a natural process; so are volcanic eruptions, and the massive amounts of effluents emitted by volcanoes are pollutants by any definition.
Third, consider a homo sapiens baby born in a cave some tens of thousands of years ago, in a world with environmental quality effectively untouched by mankind.
That child at birth would have had a life expectancy on the order of ten years; had it been able to choose, it is obvious that it would have given up some environmental quality in exchange for better housing, food, water, medical care, safety, ad infinitum.
That is, it is obvious that people will choose to give up some environmental quality in exchange for a life both longer and wealthier.
In other words, the children’s lawsuit is inconsistent with actual interests of future generations, as the obvious underlying assumption is that future generations would prefer the purest possible environmental quality.
That is not correct: Future generations want to inherit the most valuable possible capital stock in all of its myriad dimensions, among which environmental quality is one important component among many, and among all of which there are tradeoffs that cannot be avoided.
Is it the position of the attorneys representing “the children” that making energy more rather than less expensive unambiguously would make future generations better off?
In order for future generations to receive the most valuable possible capital stock, the current generation must consume and invest resources most productively.
If regulatory and other policies implemented by the current generation yield less wealth now and a smaller total capital stock for future generations, then more resource consumption and more emissions of effluents currently would be preferred from the viewpoint of those future generations.
That is only the beginning of the problematic factual assertions and assumptions underlying the children’s lawsuit.
The degree to which recent warming has been anthropogenic is unsettled in the scientific literature; and the Intergovernmental Panel on Climate Change (IPCC) in its fifth assessment report (AR5) has reduced its estimated range of the effect in 2100 of a doubling of GHG concentrations from 2.0–4.5 to 1.5–4.5 degrees C.
There actually is little evidence of strong climate effects attendant upon increasing GHG concentrations, in terms of sea levels; Arctic and Antarctic sea ice; tornado activity; tropical cyclones; U.S. wildfires; drought; and flooding. IPCC in the AR5 is deeply dubious (Table 12.4) about the various severe effects often hypothesized (or asserted) as future impacts of increasing GHG concentrations.
One might assume that the facts underlying a lawsuit ought to be consistent with its central claims; one would be wrong.
And wrong again if one assumes that the policy objective would make an actual difference: The Paris agreement with full U.S. participation would reduce temperatures by 2100 by seventeen one-hundredths of a degree.
Precisely what is the children’s climate lawsuit trying to achieve? It cannot be the protection of our constitutional principles, or protection of future generations, or environmental improvement.
Only one possibility remains: It is part of the long-term effort by the environmental left to use any means possible to exert control over other people’s property, economic choices, and lifestyles.
The plaintiff attorneys are happy to participate in a litigation process in which “the children” are irrelevant.
Zycher is a resident scholar at the American Enterprise Institute.
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