Catholic Religious and Social Justice Folks Need To Hire Better Brief Lawyers For Supreme Court Cases ( Climate Change Case)

American Electric Power Co., Inc. v. Connecticut which involved a interesting case if the Plaintiffs could get injunctive relief against the utilities for the emission of greenhouse gases that the plaintiffs allege have contributed to climate change.

Basically a rather novel claim that some federal common law claim for public nuisance exists as greenhouse gases. Judging from what I read from the about the oral argument in front of the Supreme Court even the most progressive of Judges seemed skeptical.

Mirrors of Justice has a good post on this at Climate Change at the Court. The whole thing is a good read for the lay person and Lawyers Catholic or not. However something caught my eye which I want to quote . My comments after the quote:

....Second, an amicus brief was filed by several religious organizations, including five Catholic groups: the National Catholic Rural Life Conference, the Maryknoll Office for Global Concerns, the Franciscan Action Network, the Oblates of Mary Immaculate, and the Missionary Sisters of the Immaculate Conception. The brief makes two arguments: (1) “global climate change is a grave and unparalleled threat to God’s creation,” and (2) “justice and morality demand an urgent response to global climate change,” and there are several cites to the Bible, Pope Benedict XVI, and a document from the USCCB.

Now, I’m the last person to say that “justice and morality” don’t have anything to do with law, but that isn’t really the issue here. The religious groups’ amicus brief is, I think, an example of a dangerous temptation in the law and religion field, i.e., a hasty move from religious and moral considerations to hard legal and policy conclusions. AEP v. Connecticut presents a set of legal questions and some fairly technical ones at that, including the scope of implied federal common law, the political question doctrine, standing, and the capacity of the federal courts to enforce an injunction capping greenhouse gas emissions consistent with judicially manageable standards. I don’t know what justice and morality require with respect to the appropriate levels of carbon dioxide emissions from coal-fired electricity-generating plants, but, even I did, that wouldn’t help me decide whether federal courts should be setting those levels instead of expert administrative agencies.

This isn’t reducible to a left-right political divide. Though the New York Times had an editorial on the plaintiffs’ side yesterday, such right-wing voices as the Obama Administration, the Washington Post editorial page, and Laurence Tribe have argued that regulation of greenhouse gases is properly the responsibility of the EPA operating under the statutory authority granted in the Clean Air Act, not the subject of a massive lawsuit in federal court. One can scarcely imagine, say, Justice Breyer—who has spent his life arguing for the importance of administrative agencies—thinking that one of the most complicated regulatory issues of the day should be handed over to the federal judiciary. So my concern (as someone committed to the enterprise of bringing the insights of religion to law) is that crudely arguing that “justice and morality” require a particular outcome in this case doesn't make religious voices prophetic, it just makes them look benighted.

I so agree. Too often in Catholic Social Justice circles people forget this Constitution thing exists. The approach seems to be X is good Y is bad and if Z can get us what we want then damn the torpedoes and full steam ahead.

Now there is quite a few questions about the roles of Courts, Federalism, the role of Administrative bodies , etc ,etc, etc in many of these cases. Those really have to be engaged. We really are a system of laws and we do have a governing document. One cannot just ignore it.

Update-

After thinking about and reading this "Brief" again it is even worse. I said :

"The approach seems to be X is good Y is bad and if Z can get us what we want then damn the torpedoes and full steam ahead"

I am not sure they even got that far.

I do wonder if the the National Catholic Rural Life Conference, the Maryknoll Office for Global Concerns, the Franciscan Action Network, the Oblates of Mary Immaculate, and the Missionary Sisters of the Immaculate Conception, AND by the way the THE COLUMBAN CENTER FOR ADVOCACY AND OUTREACH (CCAO) actually had the following discussion:

Hey the EPA just not is cutting it lets put our eggs in the basket of A Federal Judge aided by a couple of Law Clerks that just got out of Law School!!

Somehow I doubt it . I think they just got a call from some aligned group, thought it sounded good and SIGNED ON!! So everyone wins. The Plaintiffs can go look at these good Catholics and other backing us and it gives these Catholic groups something to talk how that they are doing something. Who cares if the actual policy could be a disaster for their goals. I don't think they got that far even. At least that is the impression I get from the "legal brief". The scary thing is how often does this occur?