No Ordinary Lawsuit
In late May, a U.S. Appeals court heard oral arguments in a U.S. government effort to stop a trial in a climate case some have referred to as “the trial of the century.” The case began in 2015 when 21 young Americans from diverse backgrounds filed a lawsuit charging that the United States government and its principal officers have played a crucial role in creating a “dangerous climate system” that violates their right to an environment “capable of sustaining human life.”
The claims of the youths in the case, Juliana v. United States, seem audacious – calling to mind Brown v. Board of Education the litigation initiated in the mid-twentieth century to end a century and a half of government-sponsored racial discrimination in the U.S.
Calling the case “no ordinary lawsuit” a federal district court judge rejected the federal government’s request the case be dismissed:
“. . . where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shortening human lifespan‘s, resulting in widespread damage to property, threatening human food sources, and dramatically alter the planets ecosystem, it states a claim for due process violation. To hold otherwise would be to say that the constitution affords no protection against a governments’ knowing decision to poison the air citizens breath or the water citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.”
The significance of the youths’ climate case was not lost on the federal appeals court judges hearing the recent oral arguments of the U.S. government’s appeal that seeks to block a trial and dismissal of the case. Repeated comparisons were made to the historic Brown v. Board decision that held racial segregation in public schools unconstitutional.
The Juliana plaintiffs challenge policies, acts, and omissions of top U.S. government officials and agencies including decisions defendants have made about whether and to what extent to regulate CO2 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, whether tax breaks and direct subsidies for the fossil fuel industry are appropriate, and others.
The youths allege these policy choices and decisions of government decision-makers have and will cause unprecedented warming of the earth and the oceans to rise, directly causing floods, food shortages, destruction of property, species extinction, and many other harms. In support, the young plaintiffs allege, based on a plethora of facts, accepted by the world’s top climate scientists, that “there is a very short window in which defendants could act to phase out fossil fuel exploitation and avert environmental catastrophe.” They seek (1) a declaration that their constitutional and public trust rights have been violated and (2) an order enjoining the government defendants from violating those rights and directing them to develop a plan to reduce CO2 emissions.”
The Trump Administration has previously repeatedly and unsuccessfully sought to have the case dismissed at the trial and appellate court levels and twice unsuccessfully requested the Supreme Court of the U.S. to intervene to block the litigation.
Finally, in late 2019 the Ninth Circuit agreed to hear Trump administration’s arguments that the young plaintiffs lack standing to sue the government, failed to identify a specific action causing the climate harm alleged and that the Plaintiffs’ claims of a fundamental substantive due process right to a particular climate system and a never-before-recognized public trust obligation on the federal government are “manifestly wrong.”
Noteworthy is a late 2018 decision of the Hague Court of Appeal that is consistent with the Juliana plaintiffs’ emphasis on the connection between climate, human rights and government responsibility to take preventive action. In State of Netherlands v. Urgenda Foundation, the court ordered upheld an order issued by a lower court requiring the Dutch government to reduce greenhouse gas emissions by at least twenty-five percent of 1990 levels by 2020.
Also notable is an early 2019 decision of the Land and Environment Court of New South Wales, upholding a government agency decision to deny permission to open an open-cast coal mine in part because “the Project will emit greenhouse gases and contribute to climate change, the consequences of which will burden future generations.” In reaching this result, Chief Justice Bryan Preston cited Australian law, including its embrace of the precautionary principle and the principle of inter-generational equity that “have been held to require consideration of the impact of a development on climate change . . . .”
These decisions of the courts of the Netherlands and Australia show that careful judicial consideration of overwhelming scientific evidence of the catastrophic impact of climate change can move courts to recognize the urgent need for governments action. Whether the U.S. courts will embrace or disclaim authority to push government actors to ameliorate climate change awaits the Ninth Circuit Court of Appeals resolution of the claims of twenty-one U.S. youth in Juliana v. United States.