Posted on November 14, 2016 by Rick Glick
As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change. On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss.
Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions. Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.
The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings. In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding: “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”
In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable. Although Judge Aiken was undeterred by these considerations, I still believe that to be true. Still, did the election of Donald Trump give new impetus to the case?
The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team. This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.
It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility. Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions? Could the election create a sense of urgency that a court may feel the need to address? Maybe, but this still strikes me as tough case to sustain.
A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax. Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there. California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session. Local environmentalists think the chances of a successful local climate initiative are high. The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.