AuthorFerrey, Steven

    The Trump Administration asserted the obscure legal doctrines of inter-circuit non-acquiescence and intra-circuit non-acquiescence to refuse to follow the direct order of a federal court enjoining its unilateral executive actions. (1) This refusal by the President created a fundamental legal challenge to the separation of powers under U.S. law. Moreover, this President's refusal transmuted a domestic legal conflict telescoping it to international dimension because the subject of this battle directly determines whether the U.S. effectively controls rapid climate change. This occurs at the time when "'Climate Commitments [are] Not On Track to Meet Paris Agreement [climate change] Goals[,]'" and the world is not on track to limit "global temperature rise by [no more than] 2[[degrees]] C--ideally [not more than] 1.5[[degrees]]C--by the end of the century." (2) This case calls into question traditional Chevron court deference to unilateral decisions made by the executive branch of U.S. government. (3)

    Presidential executive orders create law by unilateral fiat without concurrence of the legislative branch of government. (4) President Trump's unilateral executive order showcased his decision not to enforce one of the oldest international environmental treaties. (5) Thereby affecting the most capital-intensive industry in the U.S., (6) by providing the essential resource undergirding the modern world economy (7) as well as the primary renewable energy technology utilized in the U.S. (8) at a time with lasting warming of our climate exceeding what the United Nations identifies as "tipping points that are irreversible within the time span of our current civilization." (9)

    This executive branch action affects basic American infrastructure and is pivotal to the sustainability of the Planet. This unilateral executive action affected wind power that is the primary sustainable technology now used to reduce greenhouse gas ("GHG") emissions which accelerate rapid world climate warming. (10) U.S. wind power generation turbines are now implicated in killing every year hundreds of thousands of birds that are strictly protected by U.S. criminal laws and by international treaty. (11) The Trump Administration executive order rendered unprosecuted U.S. criminal law and refused to enforce a century-old international treaty and U.S. law that prohibits wind turbines from killing even a single one of these protected birds. (12)

    This Article dissects and contrasts critical unilateral executive actions during the Obama presidency and thereafter reversed and magnified during the Trump presidency. These presidents' executive actions create a judicial tug-of-war over the most-cited Supreme Court precedent in the last three decades. (13) In Chevron v. Natural Resources Defense Council, (14) the Court established court deference to unilateral law-making by the executive branch, (15) building on Supreme Court Skidmore deference. (16) This Article charts the legal consequences extending beyond substantive climate law, altering the fundamental separation of U.S. powers between the three branches of government and changing the legal tools by which U.S. law can be made and enforced.

    The repercussions for future unilateral presidential executive action to make U.S. law are tracked and analyzed in this Article. Section II.A begins by outlining how the Obama administration enforced a century-old international treaty that is U.S. environmental law, how this protected species and affected the operation of the most significant U.S. renewable energy technology, wind power. Section II.B analyses the criminal statute and century-old treaty involved; placing this in the context of the U.S. government estimates of a million protected birds being killed each year by two different subsets of the U.S. energy industry. Sections II.C pivots to the Trump Administration and its blanket non-enforcement of U.S. law and international treaty via its Jorjani memorandum announcing that the "incidental take" of a migratory bird would no longer be prosecuted under The Migratory Bird Treaty Act. (17) Then sued regarding this executive action, Section II.D analyzes the Trump's Administration defenses of procedurally no 'standing' and non-exhaustion of administrative remedies. Section II.E contrasts the deja vu of the Trump Administration deploying procedural legal defenses similar to the Obama Administration deployed when sued by more than half the states when it utilized unilateral executive action to create its Clean Power Plan to address climate change. Section III segues from procedural defenses raised by the executive branch to the merits of litigation lodged by NGOs against the Trump Administration's failure to comply with or enforce international treaty law. Section III examines in detail the holdings and rationale of the evenly split half-dozen federal court precedents addressing this fundamental issue of executive orders, separation of powers, and U.S. law. Section III analyzes and critiques how these precedents were marshaled by the Trump Administration to defend its executive actions. Section III analyzes the impact of this dispute upon the most cited Supreme Court holding in recent history affording Chevron deference to final agency action, as well as to Supreme Court Skidmore deference, Mead deference, and Auer deference. Section IV examines the federal National Environmental Policy Act (NEPA) additional noncompliance challenge to the Trump Administration's unilateral executive order not enforcing U.S. and international treaty law. NEPA requires the federal executive branch to consider environmental impacts simultaneously at the time when proposing or altering any "major federal action." (18) Section IV analyzes the taxonomy of case law supporting a NEPA challenge to any unilateral executive action during the Trump and the Obama Administrations. The federal court issued a remand and vacatur of the Trump executive order not enforcing the law. (19) Section V analyzes in detail the federal court order applying Skidmore and Mead factors to undercut deference to the Trump's Administration defense of its unilateral executive non-enforcement of existing law. However, rather than appeal the vacatur order, the Trump Administration simply refused to follow the federal court's order. (20) Section V.C examines the Trump Administration's subsequent assertion that the judicial branch is not the final arbiter of the law. Utilizing obscure theories of inter-circuit non-acquiescence and intra-circuit non-acquiescence, the Trump Administration ignored federal court orders as to everyone and everything other than the named plaintiff. (21) Section V analyzes the decision's implications for the Supreme Court Chevron and Skidmore legal deference doctrines, and importantly for repercussions affecting the separation of powers within the U.S. legal system going forward. Providing context analogously, section VI examines a related sustainable energy law conflict created by recent court opinions upholding executive branch discretion to violate U.S. law. Each of the First Circuit, Second Circuit, and Ninth Circuit Courts of Appeals declared that there was no private citizen right of redress regarding renewable energy or climate change notwithstanding the courts finding substantial specific private injury caused by executive branch actions. (22) Section VI reconciles the separation of U.S. powers and the legal re-mapping of executive branch deference at a time when climate change is not restrained below the "tipping point" where the warming world environment becomes "irreversible within the time span of our current civilization." (23)


    1. The Laws Protecting Species

      Three U.S. laws prohibit killing of most kinds of birds: The Gold and Bald Eagle Protection Act ("GBEPA") protects only two species of eagles; (24) The Endangered Species Act ("ESA") prohibits the taking of federally threatened and endangered species and protects these threatened and endangered species' habitats; (25) and The Migratory Bird Treaty Act (MBTA) makes it a felony to kill any of the more than 1,025 migratory bird species. (26) The MBTA (27) formalizes treaties between the U.S. and Great Britain (on behalf of Canada), (28) Mexico, (29) Japan, (30) and the former Soviet Union. (31) Under the Act, any person or entity who fails to comply with the MBTA shall be deemed guilty of a misdemeanor. (32) If an actor "knowingly" violates the statute then they may be charged with a felony. (33) Under the MBTA, killing any of these more than one-thousand species of protected birds can result in a $15,000 fine and up to six months in jail. (34) The MBTA also establishes a felony charge, which requires a "knowing violation" and imposes a penalty of up to two years imprisonment and a $250,000 fine. (35)

      The Migratory Bird Treaty Act prohibits the unauthorized taking or killing of migratory birds. (36) The U.S. Fish and Wildlife Service ("FWS") recognized that this prohibition includes incidental taking and killing without any statutory exemptions. (37) Consistent with that longstanding view, FWS announced in 2015 that it was considering development of regulations to provide legal authorization for an incidental take in circumstances in which the take is consistent with the purposes of the MBTA. (38) The MBTA was first enacted as a measure to prevent the decimation of flocks of migratory birds that were killed in egregiously large numbers for feathers to be worn in hats. (39)

      According to the U.S. FWS, approximately one million birds are killed by wind power generation turbines and oil pits annually. (40) If one adds bird deaths caused by collisions with electrical lines that number increases to about 26 million birds annually. (41) Some argue that these are conservative estimates; birds killed in oil pits can...

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