In 2015, a group of young Americans, some of them only 7 or 8 years old, sued the United States government, claiming the federal government “through its affirmative actions in creating a national energy system that causes climate change, is depriving them of their constitutional rights to life, liberty, and property, and has failed to protect essential public trust resources.” That’s according to Our Children’s Trust, which is sponsoring the suit. The “public trust” theory was first conceived by OCT attorney Julia Olson.
One of the young plaintiffs is a granddaughter of Dr. James Hansen, the climate scientist who testified before Congress in 1988 and warned that august body of the dangers associated with climate change and an overheating planet. Had Congress acted then, the threat from carbon emissions could have been easily addressed. But by dithering for 30 years, the problem has now grown to the point where life on Earth as we know it is threatened and the costs of solutions, if there are any, will be astronomical.
The case has been up and down the federal court system, from the trial court level in Portland, Oregon, to the 9th Circuit Court of Appeals and the US Supreme Court, as the defendants, including the government of the United States, have sweated and strained to articulate reasons why there is no constitutional right to a clean environment. Last year the Supreme Court sent the case back to the 9th Circuit with instructions to issue a final ruling on the issues.
A three judge panel of the 9th Circuit heard arguments on June 4 of last year. On January 17, 2020, it issued its 32 page opinion. In a 2 to 1 decision, the court ruled “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.” The court remanded the case to the trial court with instructions to dismiss the lawsuit.
The majority found as a matter of law that the controversy presented to them to was simply outside the scope of Article III of the Constitution, the second paragraph of which reads as follows:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens or subjects.”
You’re Right, But There’s Nothing We Can Do
Before you leap to any conclusions that the judges who heard the case were all Trump appointees, consider this: All three judges were appointed to the bench by Barack Obama. If these young plaintiffs couldn’t sway a court full of liberal judges, imagine what would happen if they faced a panel of judges appointed by the current occupant of the Offal Office. All three judges were at pains to express their sympathy with the claims made by the plaintiffs. In a press release following the decision, Our Children’s Trust said:
“The Court recognized that climate change is exponentially increasing and that the federal government has long known that its actions substantially contribute to the climate crisis. Yet two of the judges on the Panel refused to set the standard for redressing the constitutional violation, to protect our Nation’s children. The standard is a question of science that should be determined at trial.
“There were numerous points in which the majority opinion of Ninth Circuit Judge Andrew Hurwitz found in favor of the youth plaintiffs, including: the evidence showed climate change was occurring at an increasingly rapid pace; copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction. The opinion also recognized that the youth plaintiffs had suffered concrete and particularized injuries from climate change.
“The panel held the district court properly found the youth plaintiffs met the Article III causation requirement because there was at least a genuine factual dispute as to whether a host of federal policies were a ‘substantial factor’ in causing the plaintiffs’ injuries. Yet, two of the three judges held the youth plaintiffs’ claimed injuries were not redressable by an Article III court. Specifically, the majority held it was beyond the power of federal courts to order, design, supervise, or implement the youth plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the executive and legislative branches.
“In short, the majority ruled the remedies the youth plaintiffs have requested must be implemented by Congress or the President, not the courts.”
In other words, the Court agreed that the young plaintiffs have a legitimate complaint but doing something about it would be too hard a task for a court to undertake. Oddly enough, the federal courts have never shied away from seeing that justice was done when Mississippi, Alabama, Georgia, and other states wanted to bar African American students from attending school with whites. This week’s decision in fact may be an echo of the busing schemes ordered by federal courts in the ’60s and ’70s — schemes which generated a huge amount of negative backlash from the community and became the foundation for complaints about “activist judges” that still resonate across America today.
Judge Josephine L. Staton disagreed with the majority opinion. In a blistering dissent, she wrote, “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.”
Others also expressed their disappointment with the ruling. “What is remarkable about this decision, and what will land it in legal textbooks for decades to come, is that the Ninth Circuit recognizes the grave realities of the climate crisis and the government’s role in causing climate harms, but immediately abdicates the court’s own responsibility to address and remedy those harms,” said Carroll Muffett, president of the Center for International Environmental Law, in an email to CleanTechnica.
“Having recognized the gravity of harms affecting these plaintiffs and the future generations that they represent, and the responsibility of the US government for causing those harms, the Ninth Circuit concludes that it is not the role of courts to remedy that injustice,” Muffett added. “But for centuries, and emphatically, that has been the definition of the role of courts: when plaintiffs are suffering harms to fundamental rights at the hands of other branches of government, addressing those wrongs and protecting plaintiffs’ rights is the essential and inescapable domain of the federal courts.” (Emphasis added.)
“Whether on issues of equality between genders or equality between races, courts have a long history of doing precisely what the panel says they cannot do here. Now, the entire Ninth Circuit will have the opportunity to either correct that error and make a history it can be proud of, or replicate it, and spend the decades to come as another grim reminder that courts too often perpetuate injustice rather than confront it.” (Emphasis added.)
Regrettable But Predictable
Other legal observers also weighed in on the decision. Ann Carlson, an expert in climate change law at the University of California Los Angeles School of Law, told the New York Times what surprised her and many other experts was how far the lawsuit had proceeded. “I’ve always thought this case was creative and interesting but a long shot and after listening to the oral argument I thought that the court would find some way to dismiss the case that reflected its concerns about just how big the remedy was that the plaintiff were seeking in the case” — which is nothing less than getting “the United States to stop emitting carbon into the atmosphere. There really is a giant dilemma here about the lack of political will to address the problem, the lack of judicial comfort in stepping in to solve the problem,” she said.
David M. Uhlmann, a law professor at the University of Michigan and former head of the environmental crimes section of the Justice Department, told the Times the urgency of the climate crisis and the limitations of the law made the Juliana case a difficult one. “If ever there were a case where your heart says yes but your mind says no. Juliana unfortunately is that case,” he said.
Julia Olson and her clients are not done yet. She says she will ask the full 9th Circuit to reconsider the ruling of the three judge panel. Such a request is discretionary. The court is under no obligation to grant such an en banc hearing. Even if the court agrees to do so, the defendants could ask the US Supreme Court to block such a hearing. And whatever decision the full 9th Circuit reaches could also be appealed to the Supreme Court, where the conservative members of the court would likely give the novel arguments raised by this lawsuit short shrift.
Levi Draheim, who is 12 years old today — he was 7 when the suit was started — expressed the feelings of his fellow plaintiffs and their attorneys best when he said, “We will continue this case because only the courts can help us. We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so.” You can support Our Children’s Trust in their work by ordering a T shirt or other swag from their website.
What is most remarkable about the ruling by the three-judge panel of the 9th Circuit is that most of the plaintiffs are too young to vote, yet the court says their only remedy is through the political process. Sometimes adults can be so obtuse.
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