On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."
Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 young people ranging from eight to nineteen years of age, and a climate scientist acting as guardian for future generations. They asserted that the U.S. Constitution protects the right to a "climate system capable of sustaining human life," something that had not been recognized by a federal court until Aiken issued her opinion in the case.
Furthermore, the violation the youth plaintiffs alleged was quite extraordinary – that, for at least the past half century, the U.S. government has acted in violation of their rights because, in full knowledge of the grave danger that fossil fuel use and production presents to the climate system, it nevertheless systematically promoted the development of a fossil fuel economy by myriad actions, including approving, promoting, and subsidizing fossil fuel "exploration, extraction, production, transportation, exportation, and combustion."
Finally, the harm that the plaintiffs suffered as a result of the government's violation of their rights is far from ordinary: "Defendants' aggregate acts of increasing CO2 concentrations in the atmosphere have been and are harming Plaintiffs' dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, maintain their bodily integrity, and lead lives with access to clean air, water, shelter, and food."
Such are the stakes in this age of climate emergency, and coupled with the astounding failure of governments to respond in kind, they're why such lawsuits are becoming increasingly "ordinary." In the past few years, individuals and communities suffering from climate harms have increasingly sought redress from both government and fossil fuel industry defendants, bringing cases in judicial venues at the domestic, regional, and international levels, and based on various sources of law. However, according to the two judges in the majority of the Ninth Circuit panel in Juliana, courts cannot provide relief for such systematic rights violations and such massive harms. Rather, plaintiffs' only option is to convince the very policymakers who are actively perpetuating the emergency to respond to it.
Of course, the circuit court majority does not put its ruling in precisely that way. Rather, it concludes that the plaintiffs do not have "standing" to bring the case because the relief that they seek – a national remedial plan to "phase out fossil fuel emissions and draw down excess atmospheric CO2" – is not within the power of the courts to grant. Judge Stanton, the third judge on the panel who penned a compelling and scathing dissent, persuasively argues that the majority is wrong as a matter of standing doctrine.
What I find most important – and disturbing – about the majority opinion, however, is that it does not really appear to be about the plaintiffs' standing to bring the case; rather, it is about the case itself. The principal precedent on which the majority based its holding is a recent Supreme Court case holding that claims based on partisan gerrymandering present "political questions" – i.e., questions for the political branches alone, not the courts.
Importantly, the "political question" doctrine is also the crux of the fossil fuel industry defendants' arguments for dismissal of tort suits brought by communities across the nation seeking redress for climate harms. Judges who have ruled on similar such motions in two of these other cases have agreed with the defendants, based on reasoning that echoes that of the Juliana majority panel: The courthouse doors are closed to claims based on harms caused by the climate crisis. Also like the Juliana panel, both of these judges acknowledge the enormity of the danger and harms presented by the climate crisis and the urgent need for governmental action, but, as Stanton puts it in her Juliana dissent, "throw up their hands" and assert that the Constitution gives power only to the political part of our government to respond to such a crisis, if at all.
To the contrary, the climate crisis requires an immediate, "all hands on deck" response from all levels and branches of our government. Because they are different levels and branches with different powers, the nature of their respective responses of course takes on different forms. And courts have an essential role in any governmental response, a role it appears they have abnegated in these three decisions; namely, to provide some means of redress for massive harms and hold those who contributed to them responsible when the political branches have repeatedly refused to do so. The Juliana panel and the two judges in the tort cases are of course correct that a judicial response is not enough, but that makes it neither unconstitutional nor any less essential.
In his opinion for the majority in the foundational Supreme Court case laying out the "political question" doctrine, Justice William Brennan emphasized the extremely limited nature of the doctrine. It, he stated, "is one of 'political questions,' not one of 'political cases.'" That is, dismissal on "political question" grounds may be justified only by a "discriminating inquiry into the precise facts and posture of the particular case," and "not by any semantic cataloguing." But that is precisely what the Juliana panel majority and the judges in the tort cases did. Rather than engaging in "discriminating inquir[ies]" specific to the claims before them, they appear to effectively deem the entire category of climate cases to be for the political branches alone.
In her opinion that the Ninth Circuit panel reversed, Aiken recognized the judiciary's essential role in responding to the climate crisis and that it took the form of providing a hearing for climate cases such as Juliana: "Federal courts have too often been cautious and overly deferential in the arena of environmental law, and the world has suffered for it."
Because crises wreak great harm, they lay bare the structural weaknesses and failures of social systems, including law. As a result, they also present great opportunity for creating better, more just systems. The climate crisis is the largest one we have ever faced. Our courts should not miss the opportunity to do what courts can do in response to the crisis and the opportunity it presents. The Juliana and other current and future climate plaintiffs should be allowed their day in court. Our laws and our lives would be better for it.