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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Announcer: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rogers, Public Affairs Librarian, and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: Hi. Actually, I'm okay, but you know what? It's starting to be that time of the year where what you wear becomes a total guessing game. You wake up and it's too cold, and you can't wear what you put in the late afternoon, it's too hot. So if you wear long sleeves and you're tat it's too much drama. I need for this part to stop and to go to fall where long sleeves are appropriate. How are you?
J. Aughenbaugh: I'm fine. Listeners, one of the reasons why I'm chuckling is N and I had these conversations over the years.
N. Rodgers: Many years.
J. Aughenbaugh: She's got to know that, and there may be other people in her life who are this way, but I'm probably the most prominent example of this. I give next to no thought about weather and temperature.
N. Rodgers: You're the only person I know who wears Jesus sandals and shorts in the winter. Not just the fall. For you, I don't know that you change wardrobes. You know how some people like, I have my fall wardrobe and my winter wardrobe and my spring wardrobe and my summer wardrobe. Aughie's like, I got my cargo shorts and I got my Hawaiian shirts and I got my sandals. I'm good to go.
J. Aughenbaugh: I'm good to go.
N. Rodgers: What season in it? Does it matter?
J. Aughenbaugh: Until it gets into the 30 degrees snow. At that point, I might break out my boots.
N. Rodgers: There's no transition with you, is there? There's sandals to boots to sandals.
J. Aughenbaugh: Yes. I might put on a sweatshirt. Then again, I might not. This was years ago. I actually had a class who had a betting pool that they didn't share with me until I showed up in long pants. Apparently a student who picked that particular day at the beginning of the semester won the betting pool. As I walked in, he goes, "I won," and I'm like, well, what did you win? He goes, "The betting pool." I'm like, "What betting pool?" He goes, I picked this day as the day you would actually put on long pants.
N. Rodgers: I'm like, well, and the other thing about your attire, which I think is amusing is when you show up to do like Constitution Day or your public teaching in some other place, you're always wearing your slacks and your sports jacket and your shirt and your button off in a tie. People go, whoa, Aughie owns real clothes? I'm like, yes, Aughie owns real clothes. He shows up like a grown up sometimes. When the situation calls for it when he needs professional attire, he has professional attire. They're like, dude. I'm like, I know. It throws you off a little bit, doesn't it?
J. Aughenbaugh: My daughter, listeners, describes those clothes as my big kid clothes.
N. Rodgers: He's putting on this big kid clothes because he's talk about the Constitution and it actually in a serious way. Although the Constitution is always serious for Aughie.
J. Aughenbaugh: Yeah.
N. Rodgers: But this is also your favorite season of the year, this time of year when it's starting to be the baseball playoffs.
J. Aughenbaugh: Yes. As a sports fan.
N. Rodgers: Your beloved Yankees.
J. Aughenbaugh: Sports fan. We got the baseball playoffs. The football season has begun. The WNBA playoffs are going on. Hockey season has begun.
N. Rodgers: All the sports.
J. Aughenbaugh: All the sports. But another reason why listeners, this is one of my favorite times of the year, is that the United States Supreme Court begins its term the first Monday of October.
N. Rodgers: Half returned. From wherever they abscond to in the summer when they're off doing, I guess, making millions on the talking tours or teaching somewhere in Europe or out in RV, seeing a state park or whatever it is that they're doing. They come back somewhat recalcitrantly, to start in October.
J. Aughenbaugh: But Nia, a couple of them this summer have remarked, that because of their emergency and shadow docket is getting much more activity, they haven't been able to take off as much time, and a couple of them are a little grumpy about this, Justice Neil Gorsuch actually remarked, he's going around and he's selling another book, he made comments about it. Justice Sam Alito, who has a book out he's doing a press tour and he's remarked that the shadow, their emergency docket does not allow them, the full, if you will, July, August, and most of the month of September off like they used to get.
N. Rodgers: My sympathy level for that is womp. It's the trombone noise because I'm like, okay, I work 12 months out of the year. I don't get time off. Aughie is technically a nine month professor except that he teaches in the summer and during winter session. He doesn't take any time off during the year. We have, I admit, low sympathy for the, no, I didn't get my 2.5 months of time away. Miss me with your drama there, my friends. You only take 70 cases a year to start with. It's not like you're working like dogs the rest of the time.
N. Rodgers: Then I don't want to hear it. But we've got a new case. We've got an interesting case. You mentioned it in the summer of SCOTUS earlier this year for folks who may have missed that episode, Suncor Energy versus Boulder County and it now has come to fruition. They came and they argued before the Supreme Court. That's what arguing before the Supreme Court sounds like, by the way. Do you remember that guy who got Scalia's name wrong?
J. Aughenbaugh: Yeah.
N. Rodgers: Called him Justice Thomas, and he said, I would be Justice Scalia and that would be Justice Thomas. I'm like, man, you're not starting off well. That's not good.
J. Aughenbaugh: There have been some infamous oral argument gaffs. That's one of them. One that occurred with some regularity when Justice Ginsburg first got on the court was lawyers would say, Justice O'Connor, when responding to a question from Ginsburg or vice versa. It led to both of those justices correcting the attorneys, and they weren't very pleasant about it for good reason.
N. Rodgers: These are not two people that you would mix up generally. If you saw their photographs, they are not.
J. Aughenbaugh: There's only nine of them anyways. I'm sorry. You're a lawyer.
N. Rodgers: You can't manage nine names.
J. Aughenbaugh: Then you probably shouldn't be arguing in front of the Supreme Court.
N. Rodgers: Probably not.
J. Aughenbaugh: Since there were only two women on the court at the time.
N. Rodgers: You should get those right.
J. Aughenbaugh: That's one of those things that in your moot trial preparation, somebody should have gone ahead and said, don't screw up Justices O'Connor and Ginsburg. Just don't.
N. Rodgers: Call them your honor or justice. Don't put in a name if you can't remember.
J. Aughenbaugh: It's one thing to go ahead and confuse the seven other remaining members of the court because they're seven old white dudes. That's probably a little bit more justifiable.
N. Rodgers: Except now we have an African American.
J. Aughenbaugh: But at the time, Thurgood Marshall was gone from the court. The rest of the seven were old white dudes. Fine. But there's only nine in total.
N. Rodgers: If your math doesn't add up to being able to separate nine justices, and I know you're nervous, but come on now. I don't think I understand this case. I think that's part of my problem is that Boulder wants to sue an energy company for being an energy company.
J. Aughenbaugh: Well, not exactly. Again, the name of the case is Suncor Energy versus Boulder County. It was a case where the city of Boulder, Colorado and Boulder County in 2018, sued Suncor, which is a subsidiary of Canada's largest energy companies, one of them, and ExxonMobil. And they allege that the energy producers deceptively marketed fossil fuels and hid climate risks. Those climate risks caused local environmental harms like severe wildfires and floods. Thus, those two local governments in Colorado are suing those companies and asking for compensation under the state of Colorado's public nuisance and consumer protection laws. That's their lawsuit.
N. Rodgers: Side note here. Aren't energy companies lying liars that lie? Of course, they're going to say, there's nothing wrong with fossil fuels. Fossil fuels are fabulous. Because otherwise, they're saying, our product is horrible, and it will kill you and make you sad so we want you to buy more of it. Nobody's going to ever say that about their product. Kraft is never going to say, our mac and cheese might kill your kid, but they might like it so go ahead and give it to him anyway. They're never going to do that. That's not how and by the way, mac and cheese doesn't generally kill children. But companies lie.
J. Aughenbaugh: We can assume for our discussions that companies lie. Okay. But what the two local governments in this case are basically doing is what state governments did with Big Tobacco, which is saying you lied when you knew for decades, that burning fossil fuels in car destroying the environment. They want a trial where they first will have those two energy companies have to turn over documents and give depositions as to when they knew.
N. Rodgers: It always comes down to that, doesn't it? What they knew and when they they knew it.
J. Aughenbaugh: That's how they're modeling this litigation is on the rather successful litigation that the states brought against Big Tobacco in the 1990s. Eventually, that litigation led to the infamous tobacco company settlement, where the big four tobacco companies agreed to stop marketing their product to kids, and they paid out over $325 billion in civil court damages to the states over a 25-year period.
N. Rodgers: That sounds like a lot of money, but for their for them, that's not no money. It did help some families who had medical bills and other things.
J. Aughenbaugh: But the money went to the states. It did not go to individual plaintiffs.
N. Rodgers: Okay.
J. Aughenbaugh: That was one of the criticisms. Moreover, the lawsuit explicitly said that state governments could not stop the selling of tobacco products within their state, which is what the anti-cancer folks wanted and the anti-smoking folks wanted. Because if they stopped making cigarettes, then they wouldn't make enough money to go ahead and pay the civil damages, okay, promised to the states in the settlement.
N. Rodgers: Right. But they did get a warning label on that.
J. Aughenbaugh: But that warning label occurred in the 1960s from the federal government.
N. Rodgers: It wasn't part of the settlement. I thought for some reason it was part of the settlement.
J. Aughenbaugh: No, the warning label occurred from the Surgeon General of the United States in the mid 1960s. The question in this case, listeners, is a pretty big one. Does federal law in the US Constitution preempt state level climate lawsuits concerning global greenhouse gas emissions? Because the was tobacco. What the energy companies are arguing is, this litigation should be thrown out of Colorado court system because federal law in the Federal Constitution preempts such litigation. The Supreme Court heard this case the first day of their term. We're recording this the first full week of October. The oral argument occurred earlier in the week. What we're going to do, listeners is in the first part of this episode, we're going to briefly talk about the significance and the arguments. Then, we're going to go ahead and do a review of the oral arguments. The significance of this case is that, a ruling against the two local governments could halt dozens of similar local and state climate lawsuits nationwide. There's a bunch of them. The last count, there's a couple dozen of these. This is just energy companies and climate change. We're not even talking about other industries like, gun manufacturers, and other potential industries.
N. Rodgers: These wouldn't be related to climate change. It will be surprising that they're not.
J. Aughenbaugh: But there's lawsuits. Again, they're based on this idea that if you can't get policy change through the law-making process, well then go to court. Now, a ruling for the local governments could expose energy and other corporate sectors to widespread state tort liability. A lot of other industries are watching this particular case because if the energy companies lose, well, you joked about craft, the food industry, Childhood Obesity, etc. A whole bunch of other industries are like yeah, and even if they don't like big energy, they're like, you guys better win.
N. Rodgers: Because otherwise, this is going to be one. This is going to be a tobacco settlement after tobacco settlement, because those companies will have to settle with various areas and it will cost them lots and lots and lots of money.
J. Aughenbaugh: Millions of dollars, if not billions of dollars.
N. Rodgers: But just because it will cost companies money doesn't mean that it shouldn't go forward. That's why it's going forward and that's why it came to the justices. That's why they took it. It seems to me that what maybe I don't understand this, so if you could explain it, I would appreciate that. I don't understand how climate change is not a federal issue. I don't know how it could be a local issue.
J. Aughenbaugh: Well, we'll get to the merits of the case in just a moment. But first listeners, the first thing the Supreme Court is going to have to decide is whether or not they should even hear the case. What we're talking about here is, the energy companies are claiming that the Colorado Supreme Court this lawsuit could go on forever. This is so important that the Supreme Court should hear the merits of the case. The local governments claim, we've not yet even had a trial They haven't had a trial yet.
N. Rodgers: We're leaping over several courts to get.
J. Aughenbaugh: Yes. Because we haven't had a trial and there haven't been appeals, this case is not and this is a rule of justice ability. Nia, the federal courts, so there are two related concepts here. First, does a court have the authority to hear a case? That's known as jurisdiction. The second question that federal courts attempt to answer is, if we have the authority to hear a case, should we hear a case? That's known as justice ability. Is this case justiciable. One of the rules of justice ability is known as rightness. Are the issues clearly developed so that a federal court ruling can settle the case, or are all other avenues of appeal been exhausted? What the local governments are saying is, we haven't even gone through the full trial process yet, so this case isn't ripe. The energy companies are saying, well, we don't even have to have this case if the Supreme Court says, this is a case that should be addressed by the federal government. So you understand the first thing the Supreme Court's going to have to decide is, is this case ripe? But let's assume the Supreme Court says the case is ripe. Now, let's get to the merits of the case. By the way, even if the Supreme Court says this case is not ripe, there are at least four other cases already, beyond the trial level in other states.
N. Rodgers: There could be another bite at this apple.
J. Aughenbaugh: Yeah.
N. Rodgers: Well, if we can't do it through Colorado, we'll do it through Kansas. We'll do it through wherever somebody else has done the.
J. Aughenbaugh: The Supreme Court would only be delaying the inevitable.
N. Rodgers: They are kicking the can, but not even all the way down the road, just [inaudible] a little bit.
J. Aughenbaugh: The road is very short in this particular instance. Now, let's get to the merits of the case. First of all, the energy companies argue federal law bars prohibits the local governments claims. First, they talk about the fact that the United States Congress passed the Clean Air Act, which gives what federal agency Nia, the authority to regulate the environment, including the quality of air.
N. Rodgers: The EPA.
J. Aughenbaugh: The EPA.
N. Rodgers: A federal agency. Colorado can complain all it wants, but the EPA is in charge of American air.
J. Aughenbaugh: Yes. There's no provision in any of the statutes that give the EPA the authority to act that says the EPA can allow states to litigate climate change. According to the energy companies, Congress has not given states any authority, and because pollution crosses state lines, Congress can quite clearly create the EPA per the Commerce Clause. Sorry, guys, I had to bring it in the Commerce Clause.
N. Rodgers: It's always the Commerce Clause.
J. Aughenbaugh: Pollution crosses state lines. That's the law part. Now let's talk about the constitution part, which I know you wanted to get to. First of all, the energy companies point out that the structure of the Constitution says states give up the to regulate ''Inherently trans-boundary issues such as global climate change.'' This was one of the, you know, concessions that the states made when they ratified the Constitution. There are some issues that cross state lines, so state sovereignty has to be given up so that the national government has the authority to address the issue.
N. Rodgers: Think of Mississippi, crosses 800,000 billion states and therefore is not regulated by any one state.
J. Aughenbaugh: Yes. Moreover, as a number of climate change scientists have pointed out, climate change is not inherently within a state or even a country. Since it crosses state lines and it crosses nation lines per the US Constitution, which level of government and only which level of government has the authority to address those issues.
N. Rodgers: Federal.
J. Aughenbaugh: Yes, the federal government.
N. Rodgers: That's why we don't have states negotiating with Mexico. I'm sorry.
J. Aughenbaugh: Trade.
N. Rodgers: For the Rio Grande. Texas doesn't get to negotiate that for the United States. The United States government negotiates the use of the Rio Grande with Mexico.
J. Aughenbaugh: The local governments, however, say, you want to respond?
N. Rodgers: I do because there's a part maybe I'm wrong, but if it doesn't say that the states have that power, but it doesn't say the states don't have that power. Then isn't the Constitution silent on who has this power?
J. Aughenbaugh: And that's part of their argument. For listeners who have not closely read the United States Constitution, shame on you? No, I'm just kidding.
N. Rodgers: Grab a beer and settle in. If you're over age.
J. Aughenbaugh: There is a section in Article 1 of the Constitution. Article 1 deals with the powers of Congress, which is where most of the United States federal government powers are located. But there is a section, Article 1, Section 9 that actually has a description of powers that states don't possess. As Nia just pointed out, the local governments in this case are like, there's nothing in the Constitution that prohibits states from addressing these issues. This is where they were throwing the matter at, shall we say, strict constructionists on the Supreme Court. Since the Constitution doesn't preclude states from doing this, then states should be able to go ahead and do this..
N. Rodgers: That's going to be interesting for Thomas and Alito. Alito he's not hearing the case.
J. Aughenbaugh: But we'll talk about that, we'll talk about that in just a moment.
N. Rodgers: If somebody recuses himself real quickly, do they still sit there and listen, or do they wander off and do other stuff?
J. Aughenbaugh: No. They are not even in the room when it's happening?
J. Aughenbaugh: Yep. Alito was not even on the bench. Colorado further goes on to say that the federal government's powers over foreign affairs should not apply here, in part because the energy companies can't point to something that is specifically exclusively concerning the relationship of the United States government to other countries of the world, particularly because the United States actually currently has withdrawn from the Kyoto protocols in regards to reducing greenhouse gases which may cause climate change.
N. Rodgers: If you're not part of the only international body that is discussing this internationally, then clearly you don't have a dog in that fight either.
J. Aughenbaugh: Yes.
N. Rodgers: Okay.
J. Aughenbaugh: Now, then Boulder looks at the Clean Air Act, which we previously spoke about. That's the law Congress created that allows the EPA to regulate air pollution. But the current administration has argued that the Clean Air Act does not include regulating greenhouse gases. If that's the case, then state should be free to go ahead and address the problem since the federal government's recent interpretation of the Clean Air Act clears the field, says that the EPA has no authority to regulate greenhouse gases.
N. Rodgers: Sorry. This is that thing where we talk about be careful what you wish for. Because the Trump administration was like, we can't control greenhouse gases. We're not in charge of greenhouse gases. We don't even think they exist. They made a big deal out of that with their EPA. Boulder is like, if you don't think it's real, then that means you're not out there adjudicating it, so it must fall to us.
J. Aughenbaugh: Yes. We can decide to adjudicate it or not. But since you all said the EPA doesn't have this authority per existing federal law, then how can we be preempted?
N. Rodgers: That's pretty clever for Boulder to say, now that you've said you're not in charge of it, we'll be in charge of it for our state.
J. Aughenbaugh: Because what the local governments are saying here, Nia, is the Supreme Court's preemption doctrine doesn't apply if the federal government has said, we're not acting in this policy area. The preemption doctrine flows from an interpretation of the Commerce Clause in federalism. The Supreme Court, starting in the late 1930s, went ahead and said that if Congress using one of its constitutional authorities has passed a law in a policy area, then states are preempted from acting. The classic example is immigration. Anytime a state or local government attempts to regulate or pass laws, regulations about immigration, those laws get challenged and federal judges say, sorry, Congress has passed legislation giving the executive branch the authority to act concerning immigration.
N. Rodgers: That yelled, not us.
J. Aughenbaugh: Yes.
N. Rodgers: They yelled, not us and the county said, if not you, then me.
J. Aughenbaugh: Yes.
N. Rodgers: I like that. That's very clever of Boulder to hang you from your own petard as it were. You don't get to say both of these things are true. I can't control this, but neither can you. No. That's not how this works.
J. Aughenbaugh: Hey, the legal arguments in this case are just top notch. In my estimation, they're top notch. Because the arguments made by the energy companies, Nia, are arguments that have been long made by liberals. Liberals for decades have said, we can't allow these big policy issues that cross state lines to be decided by states. The national government has to respond. Okay then. According to the energy companies, you all are claiming that climate change is a nationwide, if not global problem. According to the US Constitution, which level of government has the authority to take on national global policy problems?
N. Rodgers: That's only.
J. Aughenbaugh: Yes. The arguments made by the local governments in this case are the ones that small government conservatives have been making for years. I love this stuff. I'm like, nice. Ouch. Pow, on the kisser. It's like the old Batman TV series.
N. Rodgers: With the words that show up on the screen.
J. Aughenbaugh: Pow, Boom. Listeners, a few moments ago, Nia mentioned a complicating factor in this case.
N. Rodgers: Side note, there's all the, the whole case is complicated, but this does make it more interesting.
J. Aughenbaugh: Yeah. For those listeners who have recently or had to endure research methods, we have an intervening variable in this case.
N. Rodgers: That's what we should call him from now on, our intervening variable.
J. Aughenbaugh: On September 28, Justice Sam Alito announced he is recusing himself from the case. Now, Nia, since I wrote these research notes, Justice Alito has publicly explained that neither he nor his wife owns stock in oil in the companies at issue in this case. But one of the ethics rules for federal judges is you might also consider recusing if the outcome of the case might affect you financially.
N. Rodgers: Stock in other oil companies or other fossil fuel companies which could be affected by this.
J. Aughenbaugh: Because he has recused himself, we now have increased the possibility of a 4:4 tie, which then would leave the Colorado Supreme Court's decision to allow the local government lawsuits to go forward to trial. Yes.
N. Rodgers: Alito's out. Gorsuch is from the area, isn't he? He's from the West?
J. Aughenbaugh: No. He was actually born and raised in the DC Beltway, but he lived in Colorado because he was a Federal Appeals Court judge for the 10th Circuit Court of Appeals
N. Rodgers: That, do you think, have any weight in this case? He knows the players, right?
J. Aughenbaugh: His office and he lived in Colorado. On the other hand, since it doesn't deal with Native Americans, I don't know how much it's going to affect him, because he is otherwise a strick instructionist. Let's get to the oral arguments. By the way, listeners, the oral arguments in this case lasted over two hours. Oral arguments are only supposed to last an hour. That's another sign of how complicated this case is.
N. Rodgers: When Aughie says oral arguments, what he means is Dr. Aughenbaugh stands up before the Supreme Court in that little podium thing, and he says, Good afternoon, Your Honor. May it please the Court? I have. That's as far as he gets.
J. Aughenbaugh: No. They created a new rule a couple years ago, Nia.
N. Rodgers: Is he allowed to get a full sentence out?
J. Aughenbaugh: All lawyers appearing before the court must be given a couple minutes before any of the justices can ask questions.
N. Rodgers: Because it used to be that they could pounce before you even. You get, may it please the Court out, and that was it. They would be on you like white on rice. It sounds like you get a couple of minutes to talk really fast about your thing and then what happens is they pounce and they start asking you questions. What about this? What about this? It goes and you have to be able to answer quickly and answer on your feet. That's why being admitted to the bar of the Supreme Court is a big deal, because you have to be good at the job. How did the questioning go?
J. Aughenbaugh: The justices did spend some time on the rightness issue. In particular, Justice Ketanji Brown Jackson asked a number of questions for the attorneys representing the energy companies. By the way, the Trump administration was granted time. They have weighed in. The Trump administration has argued that historically, the United States Supreme Court has deferred to the federal government on this issue and on related issues. They did spend some time on ripeness. However, they spent a lot of time on the merits of this case. For example, Nia, Chief Justice Roberts and Justice Elena Kagan really asked pointed questions of the energy companies, asking the energy companies to explain why this lawsuit is different than state civil courts entertaining all kinds of product liability and fraudulent business claim lawsuits
N. Rodgers: Better Business Bureau. Basically, the City of Boulder is saying, we have complaints about this company. They are deceptive in their practices. Normally, when you have dealt with a company where they have been deceptive with you, John Aughenbaugh deals with Nia Rodgers car fixing shop, and I take all his tires and sell them on the black market and put on little mini bicycle tires. He reports me to the Better Business Bureau, and that's a state matter, where they look at my license and they try to figure out if I should be allowed to practice automotive repair in their state How is this different from that?
J. Aughenbaugh: Because we do have an amendment of the US Constitution, the Seventh Amendment that specifically protects state courts having civil cases. Most civil cases in the United States arise in state court. How is this any different? Why should we carve out an exception for climate change lawsuits based on product liability and fraudulent business practices and claims? On the other hand, the conservative justices really went after the local governments in this case. In particular, Coney Barrett and Kavanaugh were extremely skeptical of the local government arguments, pointing out that there are at least four Supreme Court precedents. I would argue more like a half dozen that explicitly say that unless Congress explicitly allows states to litigate these claims, federal environmental laws preempt states from acting. By the way, some of those majority opinions in those previous cases, written by liberal Supreme Court justices. These were questions, listeners, that were targeted not so much at the local governments attorneys, but at the liberal Justices Sotomayor and Ketanji Brown Jackson. Are you guys willing to go ahead and overturn precedents from your liberal predecessors on this court? By the way, as I mentioned just a few moments ago, the questions from Kavanaugh and Coney Barrett are rooted in the preemption doctrine. Congress has spoken in this policy area. If you, Boulder, Colorado, don't like the current state condition of federal environmental laws, then you should go where to get policy change?
N. Rodgers: Government.
J. Aughenbaugh: You should go to the Congress.
N. Rodgers: Sorry. The Houses. You should go to the House of Senate and go, hey, fix this. That, if we could take just a moment, is I think the thing that Aughie and I, probably gives us the most concern is that I'm not sure that we want the justice system filling in when policy is what needs to be fixed.
J. Aughenbaugh: Yes.
N. Rodgers: The reason we don't want justices deciding policy is because they are not accountable. They are not elected. They are there for life. They're not accountable. They could make policy, but then we can't do anything about it because our system works as precedents. I'm not saying these nine chuckleheads, but I will say these nine chuckleheads lovingly. Do we want these nine chuckleheads making the policy when what that really should be is Congress actually doing its job and figuring this out? This is hard. When you do it in Congress and the Senate, then you have accountability. I can boot you out. In fact, we know that this midterm is going to be a whole lot of shellacking going on because people are crabby. They're crabby about the way Congress has been handling things, and they want, at least in some parts of the country change.
J. Aughenbaugh: Yeah.
N. Rodgers: Yeah. I'm not sure I'm a fan of the courts making these kinds of decisions. It feels like a failure of democracy.
J. Aughenbaugh: Yeah. That's where I was going. I gravitate towards, I want more democracy not less. Yes, I understand the courts play a vital role in the American form of democracy, but democracy is when the government passes laws and policies that reflect the will of the public. As you pointed out, let's say the Supreme Court issues a ruling and a majority of the public doesn't like it, we now got to wait potentially a generation for the justices to retire or die until we get new ones, and hopefully the new ones will go ahead and issue a different presidential ruling. I'm sorry, that's not how democracy should operate.
N. Rodgers: It's very slow moving. So slow moving. If I have to wait around for people to die, we've got some olds on the court, but we got a lot of young people on the court.
J. Aughenbaugh: Yeah. I like responsiveness. If the American public wants policy to affect climate change, then it should be done through their elected representatives. We have a representative form of democracy. We do not have a judicial democracy. Now, after reading the voluminous transcript.
N. Rodgers: I was going to say, what's your prediction?
J. Aughenbaugh: My prediction is it will be 5:3 in favor of the oil companies based on federal preemption grounds. I think Thomas, Gorsich, Kavanaugh, and Coney Barrett are easily in that camp. Roberts ask tough questions of both parties. But if the conservatives lose Roberts to the liberals, then it's 4:4.
N. Rodgers: He likes to be mysterious, so you're not going to know for a while.
J. Aughenbaugh: Yeah, we're not going to know for a while. At that point, then the Colorado Supreme Court's decision to allow this lawsuit to go to trial. Because remember, listeners, they haven't even had a trial yet.
N. Rodgers: Yeah. It could be that they go to trial and Boulder County lose. It could be that they lose and the companies win, and then it's moot.
J. Aughenbaugh: But the difficulty in particular for the liberals on the court is that if they say this lawsuit can go forward, they will have to, unless John Roberts writes the majority opinion and comes up with some very narrow way to go ahead and say, this is the reason why this lawsuit should go forward. The three liberals are then going to have to go ahead and say, this case is distinguishable from all those previous cases. Again, the majority opinions were written by liberal Supreme Court justices that said the federal government has the policy authority, not the state, okay?
N. Rodgers: Right. Because that tends to be the liberal position. The liberal position is the federal government is preemptive, and the conservative position tends to be the state's rights position. They'd be arguing the state's rights position, which like, you can do that, but remember that when you do that in this case, you're up on the door for that to be a question later on for people to say, wait, in this other case, you said yeah.
J. Aughenbaugh: Yes. Again, for our listeners who think that it's only liberal states or liberal local governments that want to go after big industries, recall that there are red states that also have policy issues that they would really like to go after the industries that they have issues with. See red states in the production of the abortion pill.
N. Rodgers: Right. Or vaccinations.
J. Aughenbaugh: Or vaccinations. Now, here's the other interesting thing that the court could do. Nia, let's say the vote at their conference was 4:4, I could see the court deciding to claim the case is unripe which then will allow the court to basically punt, but they're only punting on this type of litigation.
N. Rodgers: Until they see what happens in Colorado. Because what that means is that it goes back and then it goes through the trial system.
J. Aughenbaugh: Yeah. Or I could see the court saying, this case is ripe, but maybe one of the other cases that have already gone to trial and are currently going through a state courts appeals process, we might take one of those cases.
N. Rodgers: That could be as soon as the end of a term, right? That could still be within this term.
J. Aughenbaugh: Yeah. There are a couple cases.
N. Rodgers: You may be able to kick this can for three or four months.
J. Aughenbaugh: Yes.
N. Rodgers: I would hope that they would want to avoid that, but I don't know. This is tough because the progressive part of me is like, we should be holding companies accountable for screwing up the environment.
J. Aughenbaugh: How you do that.
N. Rodgers: Right. But the more conservative part of me is like, yes, and Congress should be doing the work of holding those companies responsible. It's gross and it's sad and it makes Congress feel bad, but they should be doing it because it's the work of the people to say, quit hurting us.
J. Aughenbaugh: Climate change as a policy area in some ways, reminds me of Congress's inaction about immigration policy.
N. Rodgers: Right.
J. Aughenbaugh: Neither side ideologically wants to compromise, so it becomes almost impossible to get any meaningful legislation in the policy area. Without that, now we have partisans on these issues that are going to court to get policy change instead of going to the lawmaking process. I'm like, we can't keep on saying that the courts are getting it wrong when we're putting the courts in just an enviable position of it.
N. Rodgers: Right. Untenable. Do you want me to make a decision or not, right?
J. Aughenbaugh: Yes. Again, even if we didn't have democratic policy concerns, courts are not always the best body to go ahead and address policy, right?
N. Rodgers: Yes.
J. Aughenbaugh: Because when you go to court, and we've said this on this podcast, Nia, there's winners and losers. Afterwards, there's no incentive for either party to then want to compromise and work with one another. The losers are sore because they've lost. The winners are like, we won, so we don't have to cooperate with you.
N. Rodgers: Like, we don't have to give an inch.
J. Aughenbaugh: Yes. Okay?
N. Rodgers: Yeah. Because Americans are both sore losers and sore winners.
J. Aughenbaugh: Winners. Yes.
N. Rodgers: We're bad at doing both of those things.
J. Aughenbaugh: Yes. Terrible.
N. Rodgers: Whereas in Congress, you would be forced with something like this to compromise. You'd be forced to say, there is a level at which they are responsible, and there's a level beyond which they are not. There's some lying here in the sand of, it's not just one or all the other.
J. Aughenbaugh: Well, I would even go a step earlier. If you're really interested in climate change, to what extent are you going to spend time in legislation, Nia, blaming the companies that contributed to climate change? Or are you going to spend time focusing on change in climate?
N. Rodgers: Right. I don't care whose fault it is. I just want to fix.
J. Aughenbaugh: I want to fix this. Then you got to start entertaining solutions. Every solution, listeners, when you are considering addressing a policy problem, have costs and benefits, which means we need to have meaningful conversations in the United States. If we're going to go ahead and wean ourselves off of our reliance on fossil fuel, are we willing to accept the costs of other energy sources?
N. Rodgers: Right. Are we willing to entertain nuclear? Are we willing to put up the money for solar, or for wind, or for hydro, or geothermic? If we're willing to do all those things, they cost money. But we can also say we will incentivize those companies to build out those.
J. Aughenbaugh: There's going to be impacts on consumers.
N. Rodgers: Right. It's available or it's slightly more expensive.
J. Aughenbaugh: Are you going to be willing to go ahead and drive a different type of car? Or are you willing to go ahead and have solar panels put on your house? Are you willing to go ahead and put up with wind turbines, marine, pristine costs?
N. Rodgers: At your sides.
J. Aughenbaugh: Okay?
N. Rodgers: Yeah.
J. Aughenbaugh: But we don't have those conversations. Instead, we go to court, and then we ask a bunch of judges who, by the way, are not experts on environmental science, right?
N. Rodgers: Right. On wildfires, on floods, or on emissions. They're not MBAs. They're not an expert on any of it.
J. Aughenbaugh: Okay. They are experts in the law. Oftentimes, I'm struck by the fact that, I'm like, we could figure this out without going to court. They're like, but I don't trust the other side. I'm like, but you trust a whole bunch of non-subject matter judges. I'm confused by that.
N. Rodgers: Then I'm not trying to be difficult here, but God help you if you're looking at a jury like, "Who?" to help people's feelings on any given day. Like, no, thank you. We'll be interested and we will get some decision this term, right?
J. Aughenbaugh: Since it was the first case, unless the court is badly divided, I wouldn't be surprised if we didn't get an opinion as early as January or February of next year.
N. Rodgers: Okay. But not before Christmas.
J. Aughenbaugh: I would be shocked, unless the court is divided 4:4 and those justices don't want to compromise, Roberts then might just go ahead and say, all right, let's just go ahead and say, we're divided 4:4, the Colorado Supreme Court decision stands.
N. Rodgers: Do they do a temperature vote before they do research, or do they all go away and do research or have their clerks do research, and then they come back for a vote?
J. Aughenbaugh: They've already voted.
N. Rodgers: Okay. They do a temperature sort of, where are we on this?
J. Aughenbaugh: They have oral arguments, and then a day or two afterwards, the week of their oral arguments, they will go into conference and take a vote. If there is a majority, then the Chief or the senior most Associate Justice assigns the majority opinion. The senior most justice among the dissenters assigns the lead dissent, and then they start writing. They've already taken a vote. We don't know the votes.
N. Rodgers: Right. We won't know what it is till they release them.
J. Aughenbaugh: Yeah.
N. Rodgers: You could make a lot of money if you were this guy who slipped out the vote. Can you imagine, on certain cases?
J. Aughenbaugh: My goodness.
N. Rodgers: Of course, if they figured out it was you, you'd be out of a job pretty fast.
J. Aughenbaugh: Yeah. Good luck being able to find future work afterwards.
N. Rodgers: That's true. Because you would be totally barred from judicial service. Loose lips sink ships.
J. Aughenbaugh: What law firm in their right mind would want to go ahead and hire you? Because no client would then be able to trust you.
N. Rodgers: Right. Well, we'll wait around and find out together.
J. Aughenbaugh: Yes. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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