Suing Over Climate Change is a Win No Matter the Verdict
On June 24, 2015, a Dutch district court in the Hague handed down a decision binding the Netherlands to reduce its total climate warming greenhouse gas emissions by 25 percent by the year 2020. The case marked the first time any country had ever been compelled to meet a minimum emissions reduction threshold on purely constitutional grounds. Citing the Dutch Constitution’s language, “It shall be the concern of the authorities to keep the country habitable,” the court rejected the government’s previous pledge of 17 percent emissions reduction, finding this inadequate to meet published United Nations targets.
For a low-lying European country whose very existence is threatened by rising sea levels, such a legal decision may seem understandable, or even expected. Whether a similar strategy could be successfully adopted for the United States legal arena, however, appeared at the time to be an uphill battle. Now three years later, a trailblazing American case is close to getting its day in court.
Kids vs. The World
On September 10, 2015, a group of ‘youth plaintiffs’ between the ages of 10 and 21 filed suit in United States District Court for Oregon over what they alleged to be an active and affirmative failure by the federal government to regulate anthropogenic, or human-caused, climate change. The youth, represented by the nonprofit group Our Children’s Trust, have to date mounted the most significant of a growing class of legal actions known as atmospheric trust litigation. Named after the then-19-year-old lead defendant, Juliana v. United States has thus far survived a litany of government attempts to dismiss the case on substantive and procedural grounds. Despite nearly three years of delay by both the Obama and Trump departments of Justice, the landmark case is now set to go to trial in October of this year. The HPR reached out to the Department of Justice, which declined to comment for this article.
While the plaintiffs make several novel constitutional arguments, the central thrust of the effort rests on a well-established, but relatively seldom used legal rationale known as public trust doctrine. Adopted from British common law, public trust doctrine states that in some circumstances, the government is compelled to maintain certain natural resources — typically waterways or wildlife — within public control for the benefit of the people. The question brought by the Juliana case is whether the air around us should be included as well.
As Oregon Law School Professor Mary Wood explained to the HPR, “Our country is built on the concept that citizens give power to government, not the other way around. So, the concept of public trust basically says that the state may not simply abdicate control of our country’s resources.” Wood, who is credited with developing the concept of modern atmospheric trust litigation, argues that public trust is not simply a matter of established case law, but a foundational aspect of democratic government. “Public trust is an attribute of sovereignty exactly analogous to the police power of government,” Wood said, referring to the fundamental right of the government to protect and police affairs inside its borders. Within this public trust framework, the government is viewed as a trustee of the nation’s resources with fiduciary responsibility to act in the best interests of the public. Further, it is the duty of the state to hold certain resources in public ownership indefinitely for the explicit benefit of living and future citizens.
Professor Richard Frank, director of the California Environmental Law and Policy Center at UC Davis School of Law, feels the plaintiffs in Juliana have a strong case, noting to the HPR that “air is the natural resource that, by its physical properties, is least capable of private ownership and exploitation.” Frank added, however, that in practice “air’s amorphous character makes it difficult for governmental and nonprofit trustees to protect.”
It is in part through use of this argument that federal defense attorneys have twice attempted to get Juliana thrown out. While it would be one thing for the government to recognize air as newly included in the public trust, it would be quite another for the court to find a remedial burden whereby the government could be mandated to legislate a comprehensive national greenhouse gas policy, or pay out potentially enormous damages.
The Constitution on Climate
Compounding a legal reasoning rooted in public trust doctrine, the Juliana case raises three additional constitutional claims. First, Our Children’s Trust believes that its defendants’ rights to “life, liberty, and property” have been significantly curtailed by climate change. Second, because the government has played an active role in causing climate change through policy which preferences fossil fuels, it has therefore affirmatively abridged a constitutional right without due process. Finally, the plaintiffs say these same harmful government actions have precipitated an additional violation of the 14th Amendment’s equal protection clause. This is because the youth will be disproportionately affected by the future consequences of climate change.
Ultimately, it is Juliana’s innovative use of the 14th Amendment that many legal onlookers see as most promising. Introduced primarily to ensure citizenship for former slaves following the American Civil War, the 14th Amendment’s equal protection clause has since become one of the more well known legal principles in the United States. The Juliana case looks to leverage this central concept — that all citizens are entitled to equal and just treatment under the law — to make the case that younger Americans are being unfairly saddled with the impacts of climate change. According to Frank, this unconventional rationale aligns perfectly with the concepts of intergenerational equity and long-term sustainability also central to the public trust doctrine.
To sell the court on such an idea, however, Our Children’s Trust will need the court to recognize ‘youth’ as a class of people whose rights are collectively under attack. Professor David Takacs of the University of California Hastings College of Law told the HPR that while courts are often averse to making such sweeping pronouncements, creation of new protected classes does occasionally occur. “We are familiar with concepts like race, gender, and sexual orientation,” he said, “but to have youth as a protected class would have a lot of legal implications.”
Whether the court finds any of these arguments reasonable is, at least for the next few months, an open question. But critics of climate litigation say there is an even more fundamental question to ask: Is taking the government to court the most productive avenue through which to pursue climate change policy?
When the Court Falls Short
Over the past several years, Our Children’s Trust, along with a variety of other environmental groups, has mounted a volley of legal challenges and administrative petitions in all 50 states and at the federal level to force policy on climate change. While most efforts have used reasoning similar to that of Juliana, the wave of atmospheric trust litigation has so far met with mixed results.
A successful challenge in the case Sanders-Reed v. Martinez ultimately resulted in a 2015 ruling that found the atmosphere to be included in the meaning of public trust under New Mexico state law. While the ruling was based on specific language within the New Mexico Constitution, it nevertheless became the first such recognition in all of U.S. case law of a de facto atmospheric trust. At around the same time, however, the U.S. Court of Appeals for the District of Columbia found in Alec v. McCarthy that no right to public trust existed at the federal level.
James Huffman, a professor at Lewis and Clark Law School who has been critical of atmospheric trust litigation, holds that suing across many venues is an intentional strategy to find the most favorable judges. “It’s not that their claims are unclever or unthoughtful, it’s just that the law doesn’t support them,” he told the HPR. Unlike Woods, Huffman asserted that public trust is not a concept protected explicitly by the Constitution. As such, he believes the success of Juliana is largely dependent on whether the plaintiffs can find a judge who is willing to depart from the established application of public trust.
Regardless of opinion, professors Frank, Takacs, and Huffman were quick to acknowledge the apparent incompatibility of addressing global climate change through the constrained, precedent-driven structure of the judicial system. That climate change transcends human timescales and national boundaries only adds to the practical frustration of a legal system already ill-suited to convert long-term harm into monetary compensation or political will. Because the legal process is hemmed in by prior decisions which make it hard to act preemptively, Frank admitted that even a decision in favor of the plaintiffs could be somewhat ad hoc and incomplete. As such, any legal regime aiming to remedy climate change could ultimately prove tedious or unworkable.
These drawbacks are not lost on the plaintiffs, according to Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law program. She stressed to the HPR that given the lack of political consensus on climate change, the court is simply one of the last avenues available to address the issue. Further, she says that Juliana’s assertive claims are highly strategic — “the remedy asked for in this type of complaint are often broader than plaintiffs hope or expect to get in the long run.” Something, it would seem, is better than nothing. For her part, Wood is confident in the far-reaching ambition of the current litigation, saying her greatest worry is that, “in 50 years, we find out the courts didn’t go far enough.”
A Win Regardless of Outcome
A standard American civics education may emphasize a neat division of labor between the three branches of government — the executive and legislative craft laws, while the judiciary evaluates and upholds them. In the political landscape of the present day, such straightforward distinctions can often seem more aspirational than realistic. It is in this present context of a willfully misinformed executive branch and a paralyzed Congress that the courts may just be this country’s last best hope for coherent climate policy.
According to Takacs, cases like Juliana are a victory for addressing climate change regardless of their actual verdicts. “This is an incredibly mediagenic lawsuit, so the fact that we are talking about this is the victory even if the case loses,” he said. Despite his criticism, Professor Huffman believes that the involvement of young plaintiffs has been effective in garnering sympathetic support from the public. Whether the judge will side with Wood’s call for an atmospheric public trust is anyone’s guess. Whatever the outcome, Wood agreed the case has already done much to move the national conversation forward on addressing climate change.
In an interview with the HPR, Jacob Lebel, one of the named youth plaintiffs in the Juliana case, recognized there are myriad societal avenues to get at mitigating climate change. “The question I ask is, ‘How do we position our efforts in the world so that we can tell our children and grandchildren we did something for climate?’” So far, going to court seems like a pretty good option.
The case Juliana v. United States is set to go to trial in Federal District Court in Eugene, Oregon on October 29th, 2018.
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