Climate Chaos and the Courts: Disappointment (Despite Some Encouragement) in Juliana v. United States

by Joel Mintz

January 27, 2020

From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.

Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel dismissed the plaintiffs' case on the grounds that they lacked standing to sue to assert the public's interest in a world without human-driven climate change.

In Juliana, the plaintiffs presented a variety of creative legal claims. They alleged direct injuries from climate change, ranging from exacerbated medical conditions and damage to property to psychological harm and recreational interests. They also asserted that lax government policies violated their constitutional rights under the due process and equal protection clauses of the U.S. Constitution, as well as the public trust doctrine.

Earlier, a federal district court ruled in the plaintiffs' favor, saying that they did indeed have a constitutional right to a climate system capable of sustaining human life. The government sought, without success, to have the U.S. Supreme Court stay the case. However, in a brief opinion, the conservative majority added a chilling cautionary note that appeared to reflect strong judicial skepticism regarding the Juliana lawsuit. Specifically, the Supreme Court stated that the "breadth" of the plaintiffs' claims was "striking" and that "the justiciability of those claims presents substantial grounds for difference of opinion."

The Ninth Circuit's recent opinion was remarkable for the panel's apparent acceptance of the fact that climate change poses an existential threat to human life. After reviewing affidavits submitted by the plaintiffs' well-qualified experts, the court declared that "the record leaves little basis for denying that climate change is occurring at an increasingly rapid pace" and that "this unprecedented rise [in the level of atmospheric carbon dioxide] will wreak havoc on the Earth's climate if unchecked." The panel further noted that "[a]bsent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies."

Notwithstanding this strong (and accurate) language regarding the pace and dangers of unchecked climate change, the panel simultaneously dismissed the plaintiffs' lawsuit for lack of standing. In doing so, their opinion illustrates the folly of the approach that many federal courts have taken to the doctrine of standing in private lawsuits intended to promote a public interest.

The court declared that the plaintiffs' concededly valid claims could not be "redressed" because "it is beyond the power of a [federal] court to order, design, supervise, or implement the plaintiffs' requested remedial plan." Thus, in the court's view, the harm that was done and continues to be done to the plaintiffs was insufficiently redressable by the courts, one of the necessary elements for a plaintiff to have standing. In taking this view, the Ninth Circuit radically misconstrued the broad remedial authority of federal judges.

While the Juliana plaintiffs did request extraordinary relief from the Ninth Circuit – a judicial order that the federal government implement a multi-faceted plan to reverse climate change – the court could have ignored that broad request while still ordering some narrower, but still beneficial, governmental action to reverse the scourge of climate disruption. In fact, the court's opinion noted the plaintiffs had conceded that the very broad relief they were seeking would not solve climate change but would only ameliorate their alleged injuries "to some extent." The court might have spotlighted that concession to support an order mandating a federal phase-out of fossil fuels or a stricter regime of federal auto emissions standards. In a case like Juliana, where a federal court opines that a plaintiff's creative approach in fashioning a lawsuit has legal merit, it is hard to believe that such a court cannot be equally creative in using its equitable powers to fashion a helpful – though admittedly imperfect – remedy that protects a plaintiff's constitutional rights to a meaningful extent.

The Juliana case is not closed. The plaintiffs have requested that the Ninth Circuit hear their case en banc, i.e. before a panel of 10 randomly selected Ninth Circuit judges that can reverse the initial panel's opinion on the issue of standing. Such requests are seldom granted, however. Moreover, even if the Ninth Circuit reverses the flawed ruling of its panel regarding standing to sue en banc, the Juliana case might very well reach the aforementioned skeptical Supreme Court.

The plaintiffs in this case resorted to the courts because the political branches of the federal government have largely failed to do anything of consequence on this existential issue. Many legal experts note that the outcome of this case is unlikely to impact the climate justice and public nuisance cases that cities and states across the country have filed in state and federal courts because the issues they've raised are different in type and scope. Nevertheless, the Juliana setback underscores how critical it is for the executive and legislative branches to move quickly and aggressively to combat the climate crisis. Thus, it is up to We, the People, to make sure our elected representatives step up. Fortunately, it's an election year, and we have a chance to make our voices heard.

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Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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