More than four years ago, 21 youthful plaintiffs asked a federal court to rule a habitable environment a protected right under the US Constitution. On January 17, 2020, a divided three-judge panel of the Ninth Circuit Court of Appeals told them they didn’t have standing to pursue their case and that there was nothing the court could do to redress the legitimate harms they had suffered:

Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.

Early on, Juliana was often reported with a wink and a nod giving the impression that it was a feel-good human-interest story about kids. As it survived one legal challenge after another, the case came to be recognized for what it could be—the most important environmental case of all time equal in stature to Brown v. Board of Education (school desegregation), Roe v. Wade (a woman’s right to an abortion), and Obergefell v. Hodges (the right of men and women to marry those they love even if of the same sex).

The environmental trial of the century now looks as if it is not meant to be. The young plaintiffs and their attorneys have announced their intention to petition for an en banc hearing by the full court of appeals to review the panel’s decision. Their only other option is to petition the US Supreme Court yet one more time. In a previous appeal, the high court noted that:

…the “breadth of respondents’ claims is striking… .and the justiciability of those claims presents substantial grounds for difference of opinion. (emphasis added)

Judicial opinions now seem to be lining up against the plaintiffs.

Two out of three is not enough

It is critical for climate activists to understand why a case succeeds or fails in the courtroom for two underlying reasons. The first is to carry the knowledge and experience forward when choosing the next case to pursue; the proposition is true whether the case just decided won or lost.

Legal decisions of constitutional consequence are rarely made within the confines of a single case. The outcome of most major suits depends on cumulative precedence and practices—known in law as the doctrine of stare decisis. What went before influences what comes after. As the dissenting judge noted in her opinion, however, constitutional vindication is often a slow churn.

The second reason an appreciation of the procedural and substantive aspects of a case is critical is to assay its potential value in a different court—that of public opinion. A procedural loss doesn’t mean the plaintiff wasn’t harmed or won’t continue to be. It means only that the defendant isn’t legally liable.

No liability is the cry of the Trump administration in Juliana. It is also the defense put forward by major oil companies in nuisance/tort suits like State of Rhode Island v Chevron et al.

Before a plaintiff is allowed to pursue a remedy in federal court, they must first establish they have the right, i.e., standing, to seek the court’s assistance. Standing is granted based on the answers to three questions:

  • Has the plaintiff suffered a concrete harm?
  • Is the harm the direct result of a defendant’s action?
  • Does the court have the power to redress the harm in some substantive manner?

Based on copious expert evidence the three-judge panel stated there could be little doubt that climate change is occurring or that it is harmful both to the planet and her people in ways ranging from rising sea levels and forest fires to more frequent and intense climate-related weather emergencies, e.g., hurricanes and droughts, all the while increasing rates of morbidity and mortality.

The panel–based on the evidence— further concluded that climate change is the consequence of fossil fuel production, extraction, and combustion and that the federal government has long understood the economic, health, and security risks associated with increasing greenhouse gas emissions like CO2.

In the matter of standing, meeting two out of three of the requirements is not enough to win the day in federal court. All must be answered in the affirmative and, in this instance, a majority of the panel believed the court was powerless to redress the injuries.

The burden is on the plaintiffs to show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within an Article III court’s power to award. Redress need not be guaranteed, but it must be more than “merely speculative.” (emphasis added) The Article III reference is to the US Constitution. Article I enumerates legislative powers, while Article II those of the executive branch.

The Juliana plaintiffs are asking the court to order the government to cease permitting, authorizing, and subsidizing fossil fuel use, AND prepare a plan subject to judicial approval to draw down harmful emissions. These are not simple requests. The sheer magnitude of what would be required to grant the requested relief was not lost on the court.

Expert witnesses for the plaintiffs’ made plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world. (emphasis added)

In an admittedly ironic turn, the truthfulness of Juliana’s expert witnesses convinced the majority of the panel that it was just too big a job for the judiciary.

The majority opinion concludes by expressing the court’s certainty of climate science, the damage knowingly being done the planet by the government’s continued support of fossil fuels, and the moral responsibility of the legislative and executive branches to do something about it. The judges even concede that the broad judicial relief the plaintiffs seek could well goad the political branches into action.

Notwithstanding all of that, the majority judges conclude that courts cannot step in to remediate a problem caused by the abdication of responsibility of the two political branches of government.

Union is much older than the Constitution

Judge Josephine L. Staton writes in her dissenting opinion that 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.

Staton sees climate change as a threat to the nation’s existencephrasing the government’s arguments in the starkest of terms:

Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. (emphasis added)

Judge Staton sees the seriousness of climate change, as testified to by the plaintiffs’ experts in depositions and written submissions, on par with the secession of southern states from the Union—placing this issue on an entirely different legal and moral plane.

While secession manifested the existential threat most apparently contemplated by the Founders—political dissolution of the Union—the underlying principle applies equally to its physical destruction. (emphasis added)

Staton is accusing her colleagues of hiding behind a technicality. She faults them for accepting the seriousness of the threat but throw[ing] up their hands, concluding that this case presents nothing fit for the Judiciary.

Staton recognizes that there are times when the judicial branch has the constitutional obligation to intervene where the political branches run afoul of our foundational principlesOne of these principles is preserving the union against threats of clearly irreversible consequences—whether political or physical.

A second principle involves the nature of the right to be protected. Staton quotes the Supreme Court’s opinion in Obergefell:

…the Due Process Clause, enshrined in the Fifth and Fourteenth Amendments, also safeguards certain “interests of the person so fundamental that the [government] must accord them its respect.” (emphasis added)

Here, Staton defines respect as answering the standing requirements of an actual harm suffered at the hands of the defendant.

As to the matter of the court’s ability to redress the harms done to the plaintiffs, Staton references the doctrine of judicial review that compels federal courts to fashion relief to right legal wrongs. Unlike her colleagues, Staton does not consider the court’s incapacity to afford the plaintiffs a total remedy as a reason not to fashion some sort of meaningful relief.

Plaintiffs have asked the court to order the administration to prepare a plan for drawing down greenhouse gases to within safe levels as determined by science. The federal government has the resources in place to produce an emissions reduction plan.

Much of this work has already been done and at the direction of the political branches. The Fourth National Climate Assessment documents vulnerabilities, risks, and impacts associated with natural climate variability and human-caused climate change across the United States and provides examples of response actions underway in many communities. 

The Assessment is mandated by Congress. It is the work of 300 federal and non-federal experts—including individuals from federal, state, and local governments, tribes and Indigenous communities, national laboratories, universities, and the private sector. That Congress and the president have chosen to ignore the findings and recommendations of its scientists only supports the case for judicial intervention.

A court’s ordering a national government to urgently and significantly reduce emissions in line with its human rights obligations is not without precedent. The Dutch Supreme Court ordered its government to cut greenhouse gas emissions by at least 25 percent by the end of 2020. (Urgenda v. Netherlands)

Staton recognizes that the political branches must ultimately act—either on their own or at the direction of the judiciary—for the nation to have any chance of avoiding the worst consequences of Earth’s warming. Her interpretation of the Constitution and case law would allow the courts to goad recalcitrant lawmakers to action.

As eloquent as Judge Staton’s dissenting opinion is, her interpretation of the Constitution and case law is not shared by many others on the federal bench. Notwithstanding the benefit of a favorable ruling in Juliana, the fact is that the courts are ill-suited to the task of bringing about the fundamental transformation of the nation’s energy system.

Courts are slow to rule, and when they do, it remains the responsibility of the political branches to implement their orders. Juliana was first filed in 2015. The Urgender plaintiffs started their efforts in 2012.

A government in denial will continue to drag its feet and challenge any orders and rulings on procedural grounds, knowing that the science is not on their side. Time, as the majority in this most recent Juliana decision admits, is of the essence.

Whether or not Juliana is allowed to go forward, the evidentiary record it has created validates mainstream climate science and is proof that the Trump administration is fully cognizant of the causes and consequences of Earth’s warming but continues to deregulate the environment—going so far as wiping all references to climate change from the web pages of federal agencies.

Even before Greta Thunberg, there were the Juliana plaintiffs. Now with Thunberg and the millions more young climate champions who have been inspired by them, the fundamental right of all people to a habitable environment is being debated in the court of public opinion where moral responsibility will be harder to rule out of order.

Lead photo courtesy of Our Children’s Trust/#YOUTHGOV#YOUTHVGOV