Two of my recent articles have examined criticisms from the left of the Supreme Court’s decision in West Virginia sues EPA — the June 30 decision that the Clean Air Act does not give the EPA explicit authority to order the phasing out of all fossil fuel-generated electricity in the United States My July 5 post, “How to Think Like a Liberal Supreme Court Justice,” Summary of Judge Elena Kagan’s dissenting views in West Virginia case. My September 12th post, “The Leftist View of Administrative Law,” discussed a presentation at the Federal Association conference by Professor Sally Katzen of NYU Law School, where she stated her belief that the EPA do authoritative in question, and criticized the Court for doing “an extreme act to prevent rulemaking.”
But Kagan’s dissent and Katzen’s presentation are merely criticisms of the Supreme Court’s approach to the matter adopted by our constitutionalists. A separate question is, what will liberals do if they suddenly find themselves in control of the supreme court – if a new Democratic-controlled Congress decides to form six New judge appointed by President Biden?
At lunch after the discussion that Professor Katzen gave, I found myself sitting next to two lawyers from Germany to attend the conference. One of them told me, in essence, you don’t know what a country’s supreme court can do when it feels that its power is unrestricted. Then he introduced me, on the subject of climate change, a Decision of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) from March 2021; and he gave me complete instructions to find information about Decision in English.
Turns out the Constitutional Court has an English section on its website where both can be found press release April 29, 2021Summary of Decision, as well as Full translation of the Decision. The entire Decision has about 270 “paragraphs”, some of which are quite long and could be as long as 200 pages if typed in the format our courts use. It is unanimous, and there is no agreement or disagreement. Unlike cases from our Supreme Court, the Decision does not have a footnote naming the plaintiff and the defendant. They suggested calling the Decision “First Senate Order March 24, 2021.” (The Constitutional Court is divided into two halves, known as the “Senate”, each with eight judges. They divide the cases among themselves based on theme.)
Here is a short version of the Decision: Many of the complainants opposed the German Climate Change Act of 2019, arguing that the Act did not go far enough in setting mandatory targets for emissions reductions. Greenhouse gas. The Court found that the mandates in the Climate Change Act were sufficient for the period up to 2030. But for the period beyond 2030, the Court found that the legislature had not passed enough greenhouse gas reduction targets and ordered the legislature to do so! And in the event that the legislature fails to pass a law to the satisfaction of the Court, the Court declares that it will impose that law on its own orders.
That may sound shocking to many who are familiar with the Supreme Court and our constitutional doctrine. But our Courts, despite some past outrageous behavior, have never really come under the control of the radical Left that now dominates law schools and the Democratic Party, as well as the majority. big Europe. If you think that there is no Supreme Court in the United States that would do something crazy like this, I can’t be sure.
Many things about this case proved quite foreign to this American lawyer. First, the case did not represent an appeal from the lower courts that had made the previous decision; rather, it was started in this Court, which is both the original and the court of last resort on constitutional matters. Clear, that’s how it works in all cases before this Court. Second, the absence of a footnote is only the first indication of the extent to which the case does not constitute a real dispute between the actual parties. Although the case was started by four different groups of “complainants” who appeared to be mostly real people, the decision was deliberately avoided to name any of them. Instead, they are mentioned anonymously (e.g. “complainant” (paragraph 40), “complainant number 1 through 11” (paragraph 40) or (for another claim), “complainants Complaints are mainly teenagers and young adults.” (paragraph 60)).
There is a section in the Decision that deals with “status,” starting with paragraph 96. This Court takes a very different approach from our courts on how to determine the status of a claim. The petition affirms environmental degradation, although I’m not sure that the end result will be different here. From paragraph 96:
Given what the complainants see as the excessively generous emissions allowed up to 2030 under these provisions, it ultimately appears that the obligations of protection arise from the fundamental rights in the Article. 2(2) first sentence and Art. 14(1) GG has been breached, and furthermore, claimants living in Germany are likely to face a reduced burden after 2030, which could jeopardize their liberties – freedoms are fully protected by fundamental rights – in an unconstitutional way. In all other respects, the possibility of a violation of fundamental rights has been ruled out or at least not fully proven.
GG is the German acronym for Grundgesetz – “Basic Law” – similar to our Constitution. So, obviously, the basis for establishing this position before this Court is “It seems that the obligation to protect arises from fundamental rights [in the GG] has been violated.” That’s a pretty low bar. On the other hand, although the standard seems to be higher in our system for specifying certain damages, the courts here have generally accepted any claim of environmental degradation. field is enough damage.
On values. You will need to read through paragraph 143 and the following paragraphs to find out what authority the Court claims is capable of ordering the German legislature to enact laws chosen by the Court that radically alter the economy. Here are the main lines (from paragraphs 144 – 148):
Art. 2(2) first sentence GG imposes on the state a general obligation to protect life and physical integrity. In addition to providing the individual with the right to defense against state interference, this fundamental right also includes the obligation of the state to protect and promote the legitimate interests of life and integrity. physical health as well as protect these interests against the unlawful interference of others. . . . The duty to protect derives from the objective aspect of this fundamental right which is, in principle, part of the subjective enjoyment of this fundamental right. Therefore, if the obligation to protect is violated, the fundamental right set forth in Article. 2(2) first sentence GG is also violated and affected individuals may protest such violation by filing a constitutional complaint. . . .
The state’s duty to protect arises from Article. 2(2) first sentence GG has no effect only after the violation has occurred. It also looks to the future. . . . The protection of life and physical integrity according to Art. 2(2) first sentence GG covers protection against deterioration and deterioration of constitutionally guaranteed benefits caused by environmental pollution, regardless of the cause or circumstances . . . . The state’s duty to protect arises from Article. 2(2) first sentence GG also includes the obligation to protect life and health against risks posed by climate change. . . .
As you can see, the logic of the Decision begins and ends with Article 2(2), the first sentence, of GG. That should be some powerful sentences. Here is the full English translation:
Everyone has the right to life and physical integrity.
That’s it. Somehow, with really nothing else to say on the subject other than those eleven words (there are only nine in German!), they managed to stretch this Decision to about 200 pages. Undoubtedly, the idea was to make it so long that it was basically impossible for anyone to read it all and realize that the judges had just pulled these enormous powers out of the air on their own.
This is an image of the building outside which the German Constitutional Court operates, located in Karlsrühe, Germany.
Obviously, working in a hideous modern building like this gets the brain addicted. See more, FBI building in Washington. (To be fair, the FBI building is worse.)
Will a left-dominated Supreme Court in the United States ever go that far off the rails? That will probably never be tested in the “climate” arena, for a variety of reasons, one being the EPA’s willingness to be the agency that issues economic shutdown orders, and all that the Court does. The Supreme Court has to do is refuse to stop them. On the other hand, given the power of climate apocalypse religion, I have no doubt that the left-dominated Supreme Court, if it sees no other way to get the job done, will issue any any orders they deem necessary to remove the fossil. fuel. Remember, our Supreme Court, in arguing that there should be a constitutional right to abortion, was able to find this right in the 14th Amendment’s Due Process Clause (“any state Neither state may deprive any person of life, liberty or property without due process”). Logically, there’s not much difference between that and what the German Constitutional Court did here.
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