But with a lesson to be learned: we need to focus on the rhetoric of remedies, not causes
It is always better to win a major, complicated, cutting-edge lawsuit (or any lawsuit) than to lose it. But even in losing there are things to be learned. As in the case of Juliana v. United States, the recently dismissed climate lawsuit by a group of young people in the United States.
The Juliana lawsuit was brought by 21 young citizens, an environmental organization, and a “representative of future generations” (Dr. James Hansen) against the President of the United States, the US and numerous federal agencies. The claims were based on the government’s continuing actions of permitting, authorizing, and subsidizing fossil fuel use despite clear knowledge of the risks to climate change from such uses. The plaintiffs asserted injuries for psychological harm, impairment of recreational interests, various medical conditions, and damage to property. The legal basis for the claims included violations of various provisions under the Fifth, Ninth, and Fourteen Amendments to the US constitution.
The case was before the United States Court of Appeals for the Ninth Circuit, on appeal from a California US District Court. Courts of Appeals are the federal courts below the US Supreme Court.
The sole issue before the court on appeal was whether the plaintiffs had “standing to sue.” There had not been any trial or testimony in the lower District Court, but only procedural disputes. The issue of “standing” is typically an early issue that has to be resolved before the court will proceed to trial.
Under US federal law, whether plaintiffs have standing, or are entitled to bring the particular claims against the specific defendants turns on whether plaintiffs have: (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision.
The 9th Circuit had no problems finding that the first two requirements were met by plaintiffs since they had the requisite injuries and had sufficiently alleged, with supporting factual and expert documentation, that their injuries were caused, at least in part, by the government’s support for fossil fuel usage.
The sticking point for two of the three judges on the 9th Circuit Panel was whether the claimed injuries are “redressable.” For purposes of this argument, the court assumed, without deciding, that the government had deprived plaintiffs of a substantive constitutional right to “a climate system capable of sustaining human life.” At 21.
But the question still remained whether there was anything the courts could do to redress these grievances.
The plaintiffs requested, as a remedy, an injunction requiring the federal government, both Executive and Congressional, to cease permitting, authorizing and subsidizing fossil fuel use, and to prepare a plan subject to judicial approval to reduce harmful emissions.
The court found that such remedies were beyond the pale of a federal court’s power. The court found that the remedy was too sweeping, that it would require fundamental transformation of the country’s energy system, that federal courts would have to monitor and supervise all the elements of the remedy over decades, and at the end of the day, as the plaintiffs admitted, the requested relief would not alone solve global climate change. As a result the court found there was a lack of standing and the case had to be dismissed.
A dissenting opinion by 1 of the 3 judges argued that there was sufficient case law to support an extensive participation by the federal courts in long, drawn-out remedies (e.g., in school desegregation cases). The dissent also argued that the case presented by the plaintiffs alleged that climate change was now irreversible and as a nation the US is on the brink of no return, so any relief, no matter how incomplete, was better than none.
While the majority opinion dismissed the lawsuit, the court did so “reluctantly,” as it spent much of its opening on the facts on climate change alleged by Plaintiffs, which were largely accepted by the court. It found that the “extensive” record, with “copious expert” evidence established that the “unprecedented rise stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.” At 14. Moreover, it concluded that: “Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.” At 15. And, “The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.” At 15-16.
The Intergovernmental Panel on Climate Change (IPCC) could not put the case for climate action better.
Since the case was dismissed because of the court’s lack power to redress the injuries, it may not have been necessary to go over the realities of climate change. But the court did so, and indeed concluded by suggesting that:
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. Diss. at 45–46, 49–50, 57–61. 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. At 11.
So the majority, case-dismissing court has sent a clear signal that climate denial arguments will not pass muster in that court. The Ninth Circuit court is widely regarded as the most liberal of the thirteen Appeals Courts, and, to its credit, often evokes tirades from Trump. It is widely respected and other courts likely will follow this lead. In any case, it will be increasingly more difficult for courts to embrace climate denialism.
While the court’s adoption of the experts served the significant purpose of supporting climate action, yet the experts may have undermined their own case. The submissions by the plaintiffs’ experts convinced the court of the dire straits the earth is in. Indeed the majority began its opinion, probably as only the 9th Circuit could, by citing a popular 1960s song, Eve of Destruction, to describe the current status of the climate. The experts argued, in part, that any corrective actions less than a total transformation of the economy or energy markets would be ineffective.
They described the current status of climate breakdown so dramatically that they may have helped convince the court that there was nothing the court could do to alleviate the crisis and so it was not redressable, at least not by the federal court.
Perhaps the lesson to be learned from the Juliana case is that we have been largely successful in winning the rhetorical battle on how bad things are. Now we need to concentrate on the rhetoric of what can be done.
While the facts and law are obviously very different, we do note that in contrast to the Ninth Circuit US court, the Supreme Court of the Netherlands held, in the Urgenda case, that the Dutch government is required to do its part in addressing the threat of dangerous climate change. The Dutch court ordered the government to reduce GHG emissions by at least 25% by 2020, a limited form of relief that was requested by the plaintiffs.
Juliana vs. United States, No. 18-36082 (9th Circuit, January 17, 2020). bit.ly/2u4mDwn
The State of the Netherlands and Stichting Urgenda (20 Dec 2019). bit.ly/2TYdH6a