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Biden DOJ Tells Court There Is No Constitutional Right To A Stable Climate

The Biden administration has taken a position on the Juliana Vs US climate suit. It has decided to oppose it.

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Juliana Vs US is a suit brought by a group of young people in 2015. They are represented by Our Children’s Trust, a non-profit that focuses on young people and whether they have a right to live in a sustainable world. On its website, it says, ” We are the world’s only not-for-profit law firm representing young people and their legal right to a safe climate.” One of the young plaintiffs is Sophie Kivlehan, whose grandfather is James Hansen, the NASA scientist who first testified before the US Senate about the impending climate crisis in 1988.

Our Children’s Trust has developed a novel legal theory which claims a lack of government action on climate change is an infringement of their clients’ rights to life, liberty, and equal protection under the law as set forth in the 14th Amendment, which reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Julia Olsen is the lead attorney for the plaintiffs in Juliana Vs. US. In 2016, she told The Guardian, “What we have is not just a failure to act. The government is doing everything to fuel this problem.” The lawsuit advances the novel claim that governments own resources in trust for use by the public.

In response, Quinn Sorenson, an attorney representing the fossil fuel industry, which has intervened in the case on the government’s behalf, snarled that the suit was an example of “archetypal generalized grievance,” meaning “any person on the planet could bring a related claim based on anything in any district.”

A Climate Suit Advances

climate suit

Credit: Our Children’s Trust

What do the young plaintiffs hope to gain if they are successful? The suit seeks damages for harm created by climate change based on alleged violation of that public trust doctrine. A ruling in favor of the youthful plaintiffs would require the federal government to create an inventory of US carbon dioxide emissions and create “an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and will depend,” according to the complaint.

The case has already been up to the US Supreme Court once. The fossil fuel companies were pretty sure the court would throw the case out. After all, the six justices who make up the conservative majority were all suckled by the Federalist Society, which is heavily supported by those same companies. But the Court sent the case back to the trial court. Recently, trial judge Ann Aiken allowed the plaintiffs to amend their complaint and scheduled the case for trial in June of 2024.

The US Department of Justice has filed a motion to dismiss the amended complaint. In its motion, it argued that because the young plaintiffs are not the only people who will be harmed by ecological breakdown and therefore the suit should be thrown out. “The state of the climate is a public and generalized issue, and so interests in the climate are unlike the particularized personal liberty or personal privacy interests of individuals the Supreme Court has previously recognized as being protected by fundamental rights,” the Justice Department wrote. The DOJ went so far as to say “there is no constitutional right to a stable climate system,” according to court records reviewed by The Lever.

“It is deeply disheartening to see the Biden Administration claim that Americans have ‘no constitutional right to a stable climate,’” Julia Olson, told The Lever. “When President Biden ran for office, he promised America’s youth that he would take bold action to combat climate change, but instead the United States is leading the world on producing fossil fuels, the very thing that is furthering climate change. Instead of fighting these young people at every turn, the U.S. Department of Justice should let youth have their day in court.”

Montana Sets A Climate Precedent

A few weeks ago, a judge in Montana ruled in favor of another group of young plaintiffs who sued the state of Montana in state court. But that case relied on a specific section of the Montana constitution that guarantees the people of that state a “clean and healthful environment.” There is no such explicit provision in the US Constitution, although the legal team for Our Children’s Trust believe it is implied in the language of the 14th Amendment.

That amendment was passed to undo the Jim Crow laws that came into existence after the Civil War. Previously, the Constitution did not clearly and unequivocally apply to the states. The amendment fixed that. Now here’s where the legal thicket gets a little more tangled. By saying “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” the 14th Amendment implies those benefits are included in the Constitution even if they are not explicitly expressed.

The current Supreme Court has taken positions lately that suggest the reactionaries on the Court are not as enamored of the 14th Amendment as progressives think they should be. The number of law review articles and court opinions written about the 14th amendment would fill hundreds of volumes. The bald truth is it means what those 6 members of the Supreme Court say it means. Those who assume the court will be a bulwark against the climate destruction created by the fossil fuel industry are likely to be disappointed in the end.

The Lever points out that in the last election cycle, the top donors to the Republican Attorneys General Association included the oil giant Koch Industries ($885,000), the fossil fuel lobby American Petroleum Institute ($175,000), and oil and gas companies Valero Energy and Exxon Mobil ($125,000 apiece), according to data from Political Moneyline.

These are the people who engineered the ascent of all 6 current reactionary judges to the Supreme Court. They know they are there to do the bidding of their masters and we all know they have every intention of doing so, which means if you are expecting the Supreme Court to step up and do the right thing, you have unrealistic expectations.

The UN Weighs In On Children’s Rights

In a strongly worded formal opinion published on August 28, 2023, the UN Committee on the Rights of the Child concludes that the triple planetary crisis from the climate emergency, the collapse of biodiversity, and pervasive pollution “is an urgent and systemic threat to children’s rights globally.”

The committee, which is responsible for monitoring the implementation of the Convention on the Rights of the Child, said children should be “recognized and fully respected as environmental actors.” That is diametrically opposed to the position of the US Department of Justice.

The opinion stresses that children have a right to be heard on crucial matters such as climate change. “Children’s voices are a powerful global force for environmental protection, and their views add relevant perspectives and experience with respect to decision-making on environmental matters at all levels.”

The UN opinion spells out, for the first time, that states have a duty to safeguard a clean, healthy and sustainable environment for young people alive today, as well as future generations. “While the rights of children who are present on Earth require immediate urgent attention, the children are also entitled to the realization of their human rights to the maximum extent.”

Aoife Nolan, professor of international human rights law at the University of Nottingham, tells The Guardian this opinion serves as a “crucial tool for those arguing for climate justice at both the international and national law levels.”

The Takeaway

There are multiple considerations that pertain to the Juliana Vs US case. One is whether this is an issue a court should even consider. Surely it involves questions of national policy that are the proper province of Congress, aren’t they? Except Congress is hell bent on dismantling the climate initiatives set in place by the Inflation Reduction Act.

At last week’s so-called Republican debate, none of the candidates said that an overheating planet was a matter of particular concern. Do courts have an obligation to step in when other branches of government fail to act? All these questions will be answered eventually. Meanwhile, the impending climate catastrophe continues to unfold across America and around the globe.

The decision by the DOJ to pooh-pooh the rights of the plaintiffs in the matter of Juliana Vs. US is an example of political cowardice. America needs better leadership and soon. The courts have failed us. The Congress has failed us. And now the executive branch has failed us.

When the case came before a federal appeals court in 2020, Judge Josephine Staton dissented from a decision dismissing case. She wrote, “In these proceedings, 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.”

Good for Judge Stanton. At least one member of the judiciary gets it.

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