by Michelle C. Pardo
If you thought animal and environmental activists had already pushed the envelope far enough in the world of federal court litigation, think again.
This week, an Oregon federal judge ruled that a group of plaintiffs – made up of animal and environmental activist organizations and individuals – do not have a constitutional “right to wilderness” and dismissed with prejudice their lawsuit which sought to force the federal government to cease policies that contributed to climate change that, in turn, harmed plaintiffs’ enjoyment of nature and wildlife. ALDF et al. v. United States, (6:18-cv-01860-MC)(D. Oregon).Plaintiffs, comprised of frequent-flyer animal rights group, Animal Legal Defense Fund (ALDF), Seeding Sovereignty, an organization that works to “shift social and environmental paradigms by dismantling colonial institutions and replacing them with Indigenous practices created in synchronicity with the land,” and several individuals, including an 11-year old child (whose mother has worked for ALDF as well as the Nonhuman Rights Project and Farm Sanctuary), had sued the federal government in Oregon. Their sweeping complaint blamed climate change for closing hiking trails, forcing one to wear mosquito repellant with “severe chemicals,” cancelling swim team practice due to an increase in Blue-algal bloom, and making the waves in the ocean too big to go surfing, among other things. (Interestingly enough, Plaintiffs’ First Amended Complaint dropped the amorphous group “Future Generations” as a plaintiff – presumably after concluding that a category of plaintiffs that included all future people living on the planet did not pass the smell test).
Plaintiffs’ core allegation was that the United States government, through its officials, has enacted national policies that promote, subsidize and develop carbon-intensive industries – such as fossil fuel extraction, animal agriculture, and large-scale commercial logging – that contribute to climate change and expose Plaintiffs to dangerous conditions on federal lands. Plaintiffs sought an injunction compelling the government to, among other things, protect Plaintiffs’ “constitutional right to wilderness” by ordering the government to implement a “national remedial plan to mitigate climate change impacts.”
Plaintiffs’ First Amended Complaint gives poignant examples of their injuries – all attributed to climate change –and the government policies that exacerbate or fail to reverse it. One ALDF member, who left her job to “live among the wilderness of the Shoshone National Forest” in Cody, Wyoming, was alleged to have a “deep, emotional connection” with the wildlife surrounding that is impaired by her inability to return to hiking trails that have been closed due to “wildfire, drought, and tree death from beetle bark infestations.” Amend. Compl. ¶ 6. ALDF also claimed that its member was injured by climbing over trees downed from beetle kill and suffered mental distress from “watching her local forest die.” Id. ¶ 7.
The complaint continues:
“Leslie needs wild refuges where she can wander for days without seeing a person or even a trail; a place where the natural forces of the Earth are allowed to shape the land; where her eyes can come to rest in a limitless horizon; and where the ageless drama of life is played out by the animals that live there.” Id. ¶ 8. Climate change, as ALDF alleged, is destroying Leslie’s “opportunity for such necessary solitude” and is affecting her physical and mental health.” Id.
If Leslie’s plight wasn’t moving enough, the Complaint also detailed the injuries suffered by an 11-year old New Jersey resident, all attributable to climate change. The Complaint recounts the child’s surfing camp cancellation due to undertows and big waves that came from a passing hurricane and her need to wear harmful mosquito repellant to protect against a proliferation of insects from standing water brought on by storm surges. Plaintiffs characterize their injuries as “grave.”
Plaintiffs sweeping allegations demanded sweeping relief – including ordering the government to phase out fossil fuel extraction, animal agriculture, and commercial logging.
In ruling on the government’s Motion to Dismiss, the court – in a relatively brief decision – found that plaintiffs did not establish Article III standing and failed to state a claim for which relief could be granted. (7/31/2019 Opinion). In recognizing that the harm plaintiffs sought to address is a “diffuse, global phenomenon that affects every citizen of the world,” the court determined that plaintiffs’ general grievance about government was not individualized and they therefore lacked standing. “Even if this Court were to recognize a formal ‘right to wilderness,’ it would necessarily be a right held in common by all citizens, and the effects of climate change would be an abstract injury that all citizens share.” Id. at 6. The Court also determined that plaintiffs have failed to satisfy the “case or controversy” requirement of Article III and, as such, lacked jurisdiction over the matter. Id. at 7.
As to plaintiffs “right to wilderness” claim, the court echoed prior judicial decisions that have consistently found that there is no substantive due process right to “live free from government regulation.” Id. at 9. More importantly, the court rejected plaintiffs’ invitation for it to engage in “nothing short of revolutionary thinking” by recognizing “a right to wilderness” under the First, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution. In declining to recognize this new right, the court stated:
“Plaintiffs’ asserted fundamental ‘right to wilderness’ lacks foundation in this ‘Nation’s history, legal traditions, and practices’ and is unlike other fundamental rights the Supreme Court has enumerated.”
ALDF has indicated that they plan to appeal the decision to the Ninth Circuit.