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The Clean Power Plan: Justice Delayed

I don’t know what time it is where you are, but it is 4:15 in the morning where I am. I just woke up—mad as hell! I have been recently researching the Clean Power Plan for a client and constantly confronted by the growing number of legal challenges to its implementation.

As a lawyer and believer in the Constitution, I am aware of the right to sue. As a member of the human race and a believer in the sanctity of life, however, I am mad that these cases are not likely to be resolved for years. For years!

This column will undoubtedly be the first of a new series. It is unlikely that I will be able to both inform and opine in the space I’m allowed. Somewhat unusually—because I already know what it is—I wish to write the conclusion of the series in advance.

In the case of the Fossil Fuel Industry, et. al. VS Earth, et. al., I find myself asking—not for the first time—is justice delayed, justice denied? It should come as no surprise that I am convinced it is.

The plaintiffs in the Clean Power Plan cases, on behalf of themselves, argue that the U.S. Environmental Protection Agency (EPA) has exceeded its authority by regulating greenhouse gas (GHG) emissions. They question the agency’s claim of jurisdiction under the Clean Air Act and cite the specific legal judgments limiting its power to protect.

In its defense, the agency points to previous legal findings of accepted authority, the order of the President of the United States and government’s general obligation to protect the health and welfare of its citizens.

These arguments are about legal niceties—not lives’ necessities. The coal companies and other plaintiffs in the case would have you believe that they are the victims in this case. Victims of unwarranted and excessive government interference with their commercial rights.

Hardly anywhere in these cases are the rights of the real victims—earth and its inhabitants—identified and offered in defense of reason. I understand that the EPA must limit its defense of the regulatory authority granted by our justice system.

Unlike the EPA, however, I am not limited in my argument by such niceties. Let me ask you—the members of my jury, the judges of environmental justice—a series of questions. For whom are we seeking recompense in these cases? Can justice, as a practical matter, be time constrained? Is a just decision rendered too late a fair decision? Is Mother Nature a person under the law? Should the laws of nature or man be used to measure corporate conduct?

Corporations have been granted certain rights under the laws of our land. Among them, the right to sue for harms committed to them. With certain exceptions companies—like individuals—are free to fight for their constitutional rights. This is not an unfettered right.

A plaintiff, for example, is not free to sue frivolously. Yet the bar of frivolity is set quite low. The Trump-et of “I’m going to sue them and cost them so much money defending themselves in court, they’ll leave me alone,” is a tried and true pushback strategy. All that is required is a plausible legal argument, a staff of attorneys and the luxury of time.

In law, plausible gives you the right to sue with abandon. In politics, plausible—as in deniability—gives you the right to tell half-truths. What is to be gained by such suits? The time to continue tortious acts.

I ask you—ladies and gentleman of my jury—is knowingly harming the lives of people and the life of our planet a protected right of any individual—corporate or human?

We know the dangers present by unleashing massive amounts of GHGs. Although our knowledge may be inexact as regards the specifics, science is secure in its knowledge that pollution costs—dearly.

A tort in law commonly refers to a civil wrong that unfairly causes someone to suffer a harm resulting in a legal, i.e., a compensable, liability. Can there be any doubt that pollution is a tort? If a tort that cannot be prevented through the regulation of the wrongful action, e.g., science-based government regulation and ordering substitution of dirty energy sources with clean ones, then how should those who suffer be compensated?

The constitutional power of the federal government to regulate existing and new sources of pollution may be limited. The power to tax and redistribute wealth is not—at least not much.

Article 1, Section 8 of the U.S. Constitution states:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States….

I submit to you a new policy framework for your consideration: tort or tax? If society cannot prevent the harm, it can certainly lay new taxes and rescind existing subsidies “to provide for the common defense and general welfare of the United States” and by extension its citizens.

According to one estimate, if state subsidies are added to federal ones, taxpayers are supporting the fossil fuel industry to the tune of over $21B a year. This figure does not include the cost in time, dollars and cumulative environmental consequences of law suits.  

Not only is that a lot of zeroes, it is money that could be spent to pay the medical expenses of the victims of pollution, to support the livelihoods and retrain workers made redundant by the transition to clean energy alternatives and to cover the cost of environmental remediation.

To show you that I am a fair and just person, I will admit that the $21B annual cost to taxpayers may not be entirely accurate and that the tax and subsidy take-back number should be submitted to arbitration.

I understand that my solution is not likely to be implemented soon. So I will return to my slumber and begin thinking about the next installment in the series of Justice Delayed.

Lead image credit: Shannon Kringen | Flickr

Read more in this series:

Part II: The Clean Power Plan: Justice Delayed — For Whom the Rule Tolls

Part III: The Clean Power Plan: Justice Delayed — The Juvenile Justice League

Part IV: Justice Delayed — Will Politics Trump Justice in the Case of the Clean Power Plan?

Part V: Justice Delayed and The Clean Power Plan — A Different Kind of Justice