Faculty Journal Posted on Thursday, February 21, 2019

The U.S. national energy policy: Does it infringe on life, liberty and property?

Peter J. Marcotullio Professor of Geography, Hunter College & Director of the CUNY Institute for Sustainable Cities; Ph.D., Urban Planning, Columbia University, 1996

Americans have enjoyed profligate lifestyles compared to the rest of the world based on their easy access to enormous amounts of affordable energy.  On a total consumption basis, the U.S. is second in the world in total energy use and 9th in the world for per capita use (Topf, 2014; US DOE EIA, 2018; World Bank, 2018).  Successive U.S. national energy policies have been based on maximizing and securing energy resources by promoting secure and safe energy production. (National Assessment of Energy Policies – Significant Achievements Since the 1970s and an Examiniation of the U.S. Energy Policies and Goals in the Coming Decades, 2010).

However, a constitutional lawsuit, Juliana v. U.S., filed in 2015 against the U.S. and several of its executive branch positions and officers is working its way through the courts.  The lawsuit asserts that the government has violated American’s rights by facilitating such an energy policy with results that have infringed upon their rights to life, liberty and property. The plaintiffs intend to bring the suit to the Supreme Court with the intent of transforming our energy system entirely leading to a change in goals and objectives as the other means of relief.  This interesting case raises some important questions: To what extent can our country’s energy policy be seen as a culprit violating such fundamental rights? What are the implications of the lawsuit with or without reaching the Supreme Court?

American energy policy arguably started in the 1970s when the country  was faced with the growing realization that their energy needs were dependent upon foreign fuel sources (Grossman, 2013). The Department of Energy and its subsidiaries have evolved since its inception in 1977.  As of January 2019, the stated goals and objectives of the DoE is to ensure America’s security and prosperity by addressing its energy, environmental and nuclear challenges through transformative science and technology solutions.

Since the founding of the Department of Energy and the inception of the federal legislation for greater energy security that followed, the United States has experienced a drop in fuel prices, particularly over the last decade.  After reaching a high of approximately $104 a barrel in 2008, oil prices have declined reaching $37 a barrel for the 2016 average and currently at around $43 a barrel for the 2017 average (inflation adjusted, US$2017). Natural gas prices have fallen from around $12 per million BTU in 2008 to less than $5 per million BTU (Henry Hub).  Additionally, wind and solar energy have experienced dramatic increases in some states.  For example, Texas is now the country’s largest producer of wind energy (and No. 6 in the world) (Marcotullio et al., 2018). With a surplus of national fuel, low prices, and increases in clean energy, how could our energy policy be depriving citizens of their life, liberty and property?

The impact of fossil fuel energy use

At first look, our energy use is also responsible for underpinning the technologies that allow us to live longer, travel farther, and access goods for cheaper prices.  The ability to access energy for our health care system, biotechnical innovations, personal cars, trucks, planes and transit systems have been of tremendous benefit to society (Smil, 1994).

Alongside these beneficial advances, pollution has increased: coal-burning power plants that supply our energy are responsible for 42% of U.S. mercury emissions, 3.1 million tons of SO2 annually (in 2014), 41.2 tons of lead, and other toxic emissions such as cadmium, arsenic and volatile organic compounds (Union of Concerned Scientists, 2017).

Notwithstanding pollution impacts however, there are other, perhaps even more insidious impacts.  Since the early 1990s, abundant evidence has been gleaned from a variety of sources that demonstrate unequivocally that Earth’s climate is changing and it is related to our energy systems.  Current climate trends and dynamics alarm scientists due to the unprecedented pace of change and the fact that it is attributable to increased fossil fuel energy consumption and poor land use.

Balancing the benefits and negative impacts of our energy policy has been difficult.  Traditionally, our view has been to ignore the impacts, as the benefits of energy use were so great.  There is mounting evidence, however, that the negative impacts associated with climate change driven by our energy use may soon outweigh the positive effects of fossil fuel use (for details on climate impacts in the U.S. see, USGCRP, 2018).

Juliana v. USA

Enter 21 children, ages 8 to 19 (now 11 to 22) from across the United States, represented by the Children’s Trust and the Earth Guardians, who together filed a constitutional climate lawsuit against the US in the District Court of Oregon in 2015. Their complaint asserts that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.  In other words: our energy system, the plaintiffs argue, will rob them of their liberties as a result of its actions, or lack thereof.

The response to this legal argument has been interesting.  In 2015, the Obama Administration was responsible to defend the government’s actions.  In fear of a weak defense, the government was joined by the fossil fuel industry.  In 2016, the U.S. Magistrate Court and the U.S. District Court denied government’s attempts to dismiss the case. Subsequently, in 2017, the industry left the defendant’s side as a new administration took over. The highlights of the case since 2017 include a long list of “drastic and extraordinary” actions taken by the current Trump administration to prevent it from coming to trail.  Actions on behalf of the defense included petitions for a writ of mandamus (three times),[1] an interlocutory appeal,[2] motion for protective order and a stay of all discovery,[3] simultaneous motion for judgment on the pleadings (“MJP”)[4] and a motion for summary judgment (“MSJ”)[5] and an application for stay with the U.S. Supreme Court, asking it to circumvent the ordinary procedures of federal litigation and stop the constitutional case.  After over two years of judicial jousting, the Trump Administration has successfully postponed the case from coming to trial.  The plaintiffs, however, do not seem to be giving up and while there is currently no trial date, preparations are continuing.

The defendant’s arguments do not address the substance of plaintiff’s grievances, but rather hinge of administrative improprieties. They have three main arguments against the plaintiff’s case.  First, they claim that the entire case is an improper attempt to use the judiciary for important questions of energy and environmental policy.  These decisions, they claim, are really the responsibility of the legislative and executive branches.  Second, and interestingly the government’s strategy is not to argue against climate change, but rather claim that the plaintiffs have failed to show concrete harm resulting from the government’s actions.  That is, the plaintiffs had no right to bring the case because of the difficulty of linking concrete harms to climate change, and that the U.S. government has only partial responsibility for rising carbon emissions.  Third, they argue that the demands of the plaintiffs represent a ”staggering burden“ to the government (i.e., that it is too much work to defend).

All three arguments have seemingly been decided.  First, the case has merit because the current (and previous) administration(s) is not acting according to written environmental law (Clean Air Act Section 202(a)) by protecting citizens from endangerment caused by federal actions.  Hence, the plaintiffs argue that the courts are not making policy but interpreting the government’s responses to policy.  Second, the number of scientific studies suggest that indeed there is concrete harm to individuals as demonstrated by the Endangerment Findings of the EPA (2009) and subsequent scientific reviews (Duffy et al., 2018).  Finally, it is questionable whether being asked to work hard to protect citizen health and well-being is unconstitutional.  Whether the case makes it to the high court, however, remains to be seen.  Yet, it already has had significant impact.

Juliana v U.S.’s significance

Perhaps the most important aspect of this case is based upon the relief sought from plaintiffs: transforming our energy system through policy.  While the current goals of U.S. energy policy have been met, the benefits to U.S. citizens may only be partial and may not help younger generations in the future.  That is, the case has opened upon a larger national dialogue on our energy needs.  By stimulating the collection of information and presenting their case before both the American public and the Courts, the group is helping move the conversation from a question of whether climate change is real or not to how to address impacts.

The underlying argument is that climate denial is not only incorrect; it is preventing us from facing important and difficult choices for our future. In a world of increasingly limited resources, decreasing size of waste sinks and larger scale impact of our actions (including climate change) there will be no easy ways to provide for the energy needs of society while reducing our impacts.  For example, given the many forms and causes of carbon lock-in (Seto et al., 2016), the shift from heavy dependence upon fossil fuels to other sources will require market mechanisms and more use of regulatory actions, stronger incentives for renewables and lower subsidies for fossil fuels.  This more holistic approach to energy policy decision making is probably the greatest hurdle for our society to overcome.  Moving forward can only be accomplished through dialogue and changes in norms across our institutions.  That the case still survives demonstrates that these changes in values are already occurring.

The difficulty of changing tracks in our energy policies is demonstrated by the current administration’s actions, which are attempting to roll back energy efficiency and environmental regulations (Popovich, Albeck-Ripka, & Pierre-Louis, 2018). Over the past two years, the Trump administration has attempted to change 78 (many successfully) environmental rules, of which over 30 relate to energy. The arguments for these actions are largely based upon economic growth, although they have also pointed (falsely) to other benefits. For example, the administration is supporting a baffling retreat from energy conservation in cars, which would allow future car manufacturers to sell gas guzzlers, even at the opposition of the car industry (Davenport, 2018). That is, rather than increasing the miles per gallon of American made cars, the administration is rolling back the corporate average fuel economy (CAFE) regulations to allow greater use of petroleum per car. The result will be less energy efficiency in our transportation sector. The claims of the government are that this rollback will increase our freedom of choice, decrease car crashes, increase jobs and advance economic development. All of these claims have been refuted (Akpan, 2018; Plumer, 2018; Sperling, 2018). Given that few want to pay more money per mile for fuel, the actions of the administration suggest ulterior motives potentially linked to fossil fuel interests (Tabuchi, 2018). Any attempt to call into question these decisions is important for not just climate protection, but to environmental and quality of life protection for the average American.

Finally, the most significant outcome of this case is to promote an understanding of how to make change.  In choosing the courts as the venue to seek transformation, the plaintiffs have also pointed to other avenues of change.  Even if the case makes it to the Supreme Court and a decision in favor of the plaintiffs is given, there is still much to do to change the trajectory of the nation’s energy system, which may not be accomplished through the courts. To those seeking change, just as important as winning this court case, is electing officials that will take command of the increasingly complicated discussions that are needed for future energy policy. It does matter who is in the White House and who sits on the Supreme Court. The differences can be seen when comparing the last three administrations.  The Bush administration was marked by the Energy Policy Act of 2005 and 2007, which provided a monetary incentive for renewable energy adoption and addressed the issue of climate change. The Obama administration was made up of advocates for renewable energy and natural gas. Donald Trump built his campaign on promises to revive the coal industry and de-construct our environmental and energy policy regimes. If we elect knowledgeable people with a basic understanding of the trade-offs associated with energy use, economic growth and environmental impact to office who will then appoint environmentally-minded judges, we can begin to seek solutions necessary to thrive in this new world.  Bringing this understanding to the public has been the greatest gift that these 21 child plaintiffs offer all American citizens.

[1] The writ of mandamus is used by a superior court to a government official ordering the proper fulfillment of duties.  According to the U.S. Attorney Office, “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”  The motion was filed to force the D.C. Circuit Judge to correct an earlier mistake.

[2] An interlocutory appeal (or interim appeal), in the law of civil procedure in the United States, occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under specific circumstances, which are laid down by the federal and the separate state courts.

[3] Protective Order is an order that prevents the disclosure of certain information under certain circumstances. A party cannot use discovery rights just to harass or annoy another party or an outside witness.

[4] The MJP request a motion to dismissal on the basis that no answer has been filed, or that the pleadings disclose that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.

[5] A MSJ requests a motion to dismissal on the basis that the pleadings and other supporting documentation establish that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.


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Peter Marcotullio is Professor in the Department of Geography, Hunter College, City University of New York (CUNY).  Dr. Marcotullio moved into this full-time position from a Hunter College Distinguished Lectureship (2007 – 2009), where he taught in the Department of Urban Affairs and Planning, the Department of Geography and in the CUNY Macaulay Honors College.  He is also co-Director of the Environmental Studies Program at Hunter College and the co-Deputy Director of the CUNY Institute for Sustainable Cities.

Prior to returning to New York City, he was Professor of Urban Planning, Urban Engineering Department, University of Tokyo (1998-2006), and held several positions at the United Nations University, Japan (1997-2008).  From 2001-2005,  Dr. Marcotullio participated in the Millennium Ecosystem Assessment as the co-Coordinating Lead Author of the urban systems chapter and is currently Program Associate with the International Human Dimensions Program’s Urbanization and Global Environmental Change project and Council Member of IntEcopolis, the International Council on Ecopolis Development, which is an international urban development project that evolved from the ISCU Scientific Committee on Problems of the Environment (SCOPE) Eco-cities project.

Prof. Marcotullio holds a MA in Biology from the University of Pennsylvania and an MA in Geography and a PhD in Urban Planning from Columbia University.  His research interests include development and urban environmental change with a regional focus on East and South-east Asia, urbanization and the environment and urban and regional environmental planning.