It’s true that the Obama administration is taking climate change more seriously than any of its predecessors. From the big picture (regulation of greenhouse gases) to the symbolic (solar panels on the White House roof), the President is pushing things in the right direction.
Which is why it’s puzzling and disturbing to find climate change deniers apparently running amok in the Department of Justice. And while what DOJ is up to might seem arcane, it boils down to this: Justice Department attorneys are arguing in court that while global warming is real – that is, the planet IS cooking – that doesn’t mean you can sue the United States when it throws another log on the fire without looking at the consequences.
Here’s what’s going on – and stick with me, though it’s a bit technical.
Conservation groups have sued the Bureau of Land Management over oil and gas in New Mexico. They argue the agency failed to look at the lease’s impacts on climate change.
DOJ attorneys respond that the doctrine of "standing" prevents conservationists from even getting in the courthouse door. "Standing" is a Constitutional requirement that makes common sense: folks should only be allowed to have their day in court if they can show that: 1) they are being harmed by something; 2) the action they challenge causes the harm; and 3) stopping the action will give some relief to the folks suing.
The groups attacking the lease argued oil leasing would worsen climate change. True. More oil burned, more climate change. They argued climate change is harming their ability to enjoy forests (which are wilting under the heat), streams (which are drying up) and skiing (which is harder to find). All true – temperature increases in the West have long been linked to drier forests, drought and less snow.
And the groups argued that stopping the leases will reduce the oil’s additive impacts to climate change, and give them a chance at a less-warm world. Also true. The more we produce, the more we burn. The less produced, the more will have to be produced somewhere more expensive, reducing demand.
While this all makes sense, the climate change deniers at DOJ see things differently.
DOJ lawyers say that the groups suing to stop oil leasing have no standing because they can’t meet any of the three-part test. DOJ says, sure, climate change is real … but can you really be sure that the impacts we’re seeing are caused by global warming? (The science is still fuzzy, they say. We just don’t know "how changes to global climate will affect any particular land area.") And can you be sure that the climate change attributed to this one project will hurt you people in New Mexico? Or that the tiny bit of greenhouse gases (only a few hundred thousand tons – a smidge really!) will worsen things more than a few thousandths of a degree? You can’t, they say. So get out of court. Let BLM off the hook for ignoring climate change pollution.
DOJ’s approach is a cynically narrow one and ignores what climate change is all about. It’s a page ripped straight from the playbook of the climate change deniers in industry. The DOJ approach says: "Judge, pay no mind to those tiny bit of straw going onto the camel’s pack. There’s no proof that any one little bit will hurt the camel." Or as former D.C. Circuit Chief Judge Pat Wald put it more eloquently 20 years ago:
If global warming is the result of the cumulative contributions of myriad sources, any one modest in itself, is there not a danger of losing the forest by closing our eyes to the felling of the individual trees?
But that’s the danger DOJ wants the court to ignore: "Just close your eyes, judge. Nothing bad can happen from this one little project. Climate change isn’t hurting anyone in particular anyway."
Meanwhile the problem just keeps getting worse.
We at Earthjustice, of all people, understand that government lawyers will zealously represent their client with any argument they can. But we should expect – and get – better from this President on this issue.