5 things to watch in kids’ climate case appeal

Source: Ellen M. Gilmer, E&E News reporter • Posted: Thursday, February 28, 2019

Government lawyers and a group of young plaintiffs are busy trading legal barbs in what could be the final stage of the so-called kids’ climate case.

Juliana v. United States is before the 9th U.S. Circuit Court of Appeals, which has the power to either halt the litigation or greenlight what plaintiffs have billed as the “trial of the century.”

The 21 children and young adults filed suit in 2015, arguing that federal policies enabled or fueled climate change. They’re asking a federal district court in Oregon to rule that the government violated their rights to a sustainable climate and fell short of its obligation to protect the atmosphere for the public.

The Oregon court repeatedly allowed the case to proceed, and the litigation survived multiple emergency bids by government lawyers asking the 9th Circuit and the Supreme Court to get involved.

Late last year, however, the district court judge agreed to open up her previous orders to full review by the 9th Circuit.

The federal government filed its opening brief in the appeal earlier this month, and the youth plaintiffs returned fire last week. Oral arguments are expected this summer.

Here are five key legal issues to watch.

Standing

Justice Department lawyers representing the federal government have repeatedly argued that the young litigants don’t meet the legal bar to bring their case — in other words, that they don’t have standing.

To meet the federal requirements for legal standing, a threshold for getting into court, all plaintiffs or petitioners must show they are concretely harmed by the action they are challenging, that the harm can be traced to the party they are suing and that the court can do something to fix the harm.

The Juliana plaintiffs have made many arguments to establish their legal standing, including pointing out natural disasters linked to climate change that have affected them and outlining emotional stress the children endure because of the government’s climate actions.

Government lawyers have countered by noting that climate change is a global issue, not the kind of direct harm that can be litigated (Climatewire, Feb. 4).

They also contend that the government hasn’t caused climate change and that a court can’t redress the alleged harm anyway because “a single district judge may not … seize control of national energy production, energy consumption, and transportation in the ways that would be required to implement Plaintiffs’ demanded remedies.”

Lawyers for the children dispute the characterization of climate change’s impacts as purely global. They further argue that many of their arguments center on contested facts that must be sorted out at a trial in the district court.

“These young people deserve the chance to present their full case against their government who is harming them and let the light of justice fall where it may,” Our Children’s Trust attorney Julia Olson, who is representing the plaintiffs, said in a statement last week.

Right to livable climate

One of the most controversial substantive claims in Juliana is the youth plaintiffs’ assertion of a right to a climate system that can sustain human life. Such unenumerated rights — those that don’t explicitly appear in the Constitution — have long divided legal minds.

The Ninth and 14th amendments acknowledge the existence of rights not written into the Constitution, and the Fifth Amendment bars the deprivation of “life, liberty or property without due process of law.” The Supreme Court has recognized unenumerated rights to privacy, same-sex marriage, travel and other things. But critics say the so-called climate right stretches the concept too far.

In their 9th Circuit brief last week, lawyers for the kids and young adults maintained that a livable climate is essential to the protection of life and liberty.

“Remarkably, Defendants contend that the federal government can knowingly deprive American children of a life-sustaining climate system, the very foundation of all life, without violating the Constitution,” they told the court.

One of DOJ’s top political officials made the government’s position clear in a speech last year, saying the right to a livable climate “simply does not exist.” Jeffrey Wood, who was then chief of the agency’s environment division, later told E&E News such novel ideas about constitutional protections belong in law review articles and academia (Greenwire, Oct. 31, 2018).

Public trust

Another key element of the kids’ climate case: the government’s alleged responsibility to protect the atmosphere under the public trust doctrine.

The concept of the public trust comes not from any written statute but from “common law,” the body of legal customs and precedent from court decisions dating back centuries. The doctrine has historically been applied to navigable water and wildlife, tasking the government with maintaining those resources for the public’s benefit.

The Juliana case endorses an expansion of the doctrine to also apply to the atmosphere. The federal government, the argument goes, failed to meet its duty to protect the atmosphere, and courts must step in to assess that failure and order remediation.

Strong disagreement exists over the proper scope of the public trust doctrine and the extent to which the federal government is bound by it.

“The people who complain that this is an outlandish expansion of the public trust really haven’t looked closely at the expansion of the public trust in years,” Lewis & Clark Law School professor Michael Blumm, who studies the doctrine, told E&E News last year (Climatewire, Oct. 5, 2018).

The government’s counterargument is threefold: First, it says, there is no federal public trust doctrine binding the federal government. Second, even if there were a federal obligation, it was displaced by various statutes that spell out how to protect the environment. Finally, even if the doctrine weren’t displaced, it still wouldn’t extend to the atmosphere.

State-created danger

The Juliana plaintiffs raise another constitutional claim in their lawsuit: The U.S. government put the children in danger by contributing to “dangerous climate destabilization.”

Claims of state-created danger are rooted in the Fifth Amendment’s due process clause, the provision protecting life, liberty and property. The 9th Circuit has established a three-part test for a litigant to support a claim: The risk of harm must be very serious; the defendants must have understood or have been willfully blind to the risk; and the defendant must have failed to take obvious steps to address it.

The U.S. government’s approach to climate change fits the test perfectly, the kids argue.

But DOJ lawyers point out that state-created danger claims have previously arisen in cases involving physical assault, rape and death caused by government action. The youth plaintiffs, by contrast, allege climate change has robbed them of their dignity and capacity to meet their basic human needs, safely raise families and “maintain their bodily integrity.”

Those are not the kind of “immediate, direct, physical, and personal harms” at issue in the traditional state-created danger cases, government lawyers told the court. Moreover, they said, the kids’ lawsuit points not to a specific government action but to “mostly unspecified” action and inaction over decades.

Blocking fossil fuels

The youth plaintiffs intensified their already high-stakes lawsuit earlier this month when they sought a court order suspending federal permits for fossil fuel development.

The unusual request faces long odds in the courtroom. But if it’s successful, it could sideline oil and gas development, pipeline construction, coal mining and other activities requiring government approval for the duration of the litigation.

The litigants say the order is urgently needed to halt the greenhouse gas emissions associated with fossil fuel development.

The federal government pushed back on the request last week, calling it an unprecedented approach that could derail important government functions and economic activity (Climatewire, Feb. 21).