What's Wrong with Juliana (and What's Right?)

by Daniel Farber

January 22, 2019

Originally published on Legal Planet.

Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare [that] the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and implement 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 in the future will depend."

More specifically, they ask the court to "order Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions, as well as take such other action necessary to ensure that atmospheric CO2 is no more concentrated than 350 ppm by 2100, including to develop a national plan to restore Earth's energy balance, and implement that national plan so as to stabilize the climate system."

Although the District Judge has ruled thus far in favor of the plaintiffs, the Supreme Court has already signaled its skepticism about the case in disposing of a stay motion. The plaintiffs seem unlikely to surmount the legal obstacles before them. But there is an important insight at the heart of their case, and there may be other ways to operationalize that idea.

A Series of Legal Hurdles

I should make a couple of things clear before I start. My focus isn't going to be on how the case should come out, but rather on how I think it's likely to be resolved. And I won't address other possible benefits or risks connected with the litigation, other than winning or losing. On the positive side, even a losing lawsuit might help educate the public, uncover more facts about government policy, or make incremental progress toward better doctrine. On the other hand, a losing lawsuit might also create bad precedent on an issue like standing in climate change cases. But I'm only going to look at the "win or lose" issue.

Standing.

To get into court, the plaintiffs need to prove that they have standing. The plaintiffs allege that they have suffered a variety of harms from climate change, such as algal blooms affecting their drinking water and local flooding. To provide a basis for standing, these impacts must count as injuries, which they probably do; be caused by the defendant; and be remediable by a court.

The best precedent for the plaintiffs is Massachusetts v. EPA, where the Supreme Court gave the state standing in a climate change case based on harm from sea level rise. That case might be distinguishable because the "children's case" plaintiffs don't have the quasi-sovereign status that states enjoy and because sea level rise is much easier to tie to climate change than most other injuries. And there may or may not be five Supreme Court votes to overrule Massachusetts v. EPA on the standing issue, after Kennedy's replacement by Kavanaugh.

Legal Theories.

The plaintiffs have two legal theories. Their first theory is that the climate change will harm public land and coastal waters that the federal ...

Recommended Resources:
Climate Change
Time for Real Action on Global Warming

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