Posted on January 23, 2020 by Rick Glick
In an extraordinary opinion issued January 17, the Ninth Circuit U.S. Court of Appeals concluded that the redress sought by the Juliana v. United States plaintiffs is beyond the power of federal courts. It is not the conclusion that is extraordinary, which was widely expected, but rather the court’s extended expression of dismay in having to reach it.
Plaintiffs in this case are a group of young people alleging that through policies promoting or acquiescing to fossil fuels use, the federal government has violated their constitutional rights to a “climate system capable of sustaining human life.” The court never reaches the merits of the case.
The basis for the court’s conclusion is that the plaintiffs lack standing, meaning the right to prosecute their case in federal courts. There is a three-part test for standing. First, the plaintiffs must show “concrete and particularized injury.” Second, plaintiffs must show that their injury is caused by defendant. Third, the plaintiffs must demonstrate that the alleged injury can be redressed by court order. The court found that plaintiffs satisfied the first two prongs, but not the third.
The court noted that the “plaintiffs have compiled an extensive record” that the government “affirmatively promotes fossil fuel use in a host of ways,” from tax credits to extraction leases on public lands. These policies “will wreak havoc on the Earth’s climate if unchecked.” The court had no trouble finding particularized injury to specific plaintiffs and that there is a genuine issue as to whether these government policies are a “substantial factor” in plaintiffs’ injuries. The harder question is what a court could or should do to remedy the problem.
The court found that the scope of the desired remedy—an injunction to end pro-fossil fuel policies and to direct the government to prepare a plan to reduce emissions—is better left to the political branches to resolve. The court recognized the harm from government policies, which the government does not refute. However, such an order is problematic because:
- Plaintiffs own experts acknowledge that the injunction would not “suffice to stop catastrophic climate change or even ameliorate their injuries. . . . Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”
- “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
- “Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’ We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”
The plaintiffs have indicated the case is not over, that they will seek reconsideration of the three-judge panel’s decision before the entire Ninth Circuit en banc, and possibly the Supreme Court. Reconsideration rarely overturns decisions and bringing the case to the Supreme Court is risky. If the Court accepts the case, the result may be an even more adverse standing ruling for such cases. There are cases pending in which the relief sought is not so broad as in Juliana, cases in which states are asking for money damages for harm caused by government fossil fuel policies. The Ninth Circuit’s denial of standing based on redressability may not be as limiting in those cases, as courts are accustomed to cases seeking damages.
Even if the Juliana case ends here, it will have served an important public service. The plaintiffs’ tenacity—and the extraordinary advocacy by their attorney Julia A. Olson—have shone a spotlight on the abject failure of the government to address climate change. The court expressed its sympathy to that effort and its regret at the limited ability of the judiciary to correct the government’s failure:
“The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
It was always unlikely that U.S. courts would feel empowered to issue orders to address so complex and global a problem. The Trump Administration’s open hostility to aggressive action to restrain fossil fuels use—reaffirmed by the President at the Davos conference just this week—coupled with congressional inaction, suggests leaving the matter to the legislative and executive branches is a slim reed indeed. But as the court concludes, Juliana and other climate cases make it harder for politicians to ignore the catastrophic consequences and get reelected. The question is, how much more time do we have to take meaningful action?