Ninth Circuit Rejects Kids’ Climate Case

by Michelle C. Pardo

Back in 2015, the case of Juliana v. U.S., brought by 21 young people and various environmental groups in federal court in Oregon, grabbed many headlines.  The issue: plaintiffs alleged that the U.S. government was violating their constitutional rights by contributing to climate change, despite knowing of its significant and catastrophic consequences.  The lawsuit highlighted the impact of fossil fuels on the Earth’s climate and alleged that the federal government has long understood the risk of fossil fuel use and increasing carbon emissions, and has deprived plaintiffs of the right to “a climate system capable of sustaining human life.”  Frustrated with the lack of action from the political process, this group of young plaintiffs, with a hefty backing of environmental activists, tried to get the federal courts to take action.  The relief requested: a court order to compel the government to end fossil-fuel subsidies and adopt policies that would reduce greenhouse-gas emissions.

Why is Juliana of interest to our animal bloggers?  This case, like many cases brought by activists, special interest groups, and concerned individuals, came down to constitutional issues that doom many an environmental case:  in a word, “standing.”  In most basic terms, the concept of legal “standing” is the term for the ability of a party to demonstrate to the court a sufficient legal connection to, and harm from, the challenged action to support their participation as a party in the case.

Fast forwarding through the complicated procedural history, the Ninth Circuit considered whether plaintiffs had standing to pursue their claims.  While recognizing “the record leaves little basis for denying that climate change is occurring at an increasingly rapid pace” and noting the government’s contribution to climate change is not just from inaction, but from affirmative promotion of fossil fuel interest, the Court , concluded that the “redressability” prong of the standing inquiry was lacking.  The problem lies in the crux of the requested relief: an injunction requiring the government to cease permitting, authorizing and subsidizing fossil fuels, and to plan to draw down harmful emissions.  In other words, a result was “no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”

Ultimately, the Court concluded that this comprehensive scheme to redress fossil fuel emissions and combat climate change is beyond the power of an Article III court.  “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or for worse, to the wisdom and discretion of the executive and legislative branches.”  At bottom, the task at hand would require the court to delve into a broad range of policymaking and require it to substitute its own assessment for the Executive and Legislative branches.

Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’  We doubt that any such plan can be supervised or enforced by an Article III court.  And, in the end, any plan is only as good as the court’s power to enforce it.”

And, while crediting the severity of the issue, the Court noted: “[n]ot every problem posing a threat — even a clear and present danger –to the American Experiment can be solved by federal judges.”  Quoting the famous Judge Benjamin Cardozo, the court stated:

a judicial commission does not confer the power of “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness;” rather, we are bound “to exercise a discretion informed by tradition, methodized by analogy, disciplined by system.”

At the end of the majority opinion, the Court even speculated that the relief sought by plaintiffs could “goad the political branches into action.”  But, like many activist defeats in federal or state courts, the legislative front is the forum in which they may seek change.  Some followers of the Ninth Circuit may be surprised by this degree of judicial restraint.  But for all the majority’s restraint, the dissenting judge’s opinion strikes a calamitous tone, beginning with:

“the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity.  It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.”

For now, Juliana is an example of an activist case in which its plaintiffs and supporters will inevitably have to leave the courts behind and instead pursue the battle on the legislative front.