Biden win won’t change Juliana’s fate

Source: By Jennifer Hijazi, E&E News reporter • Posted: Wednesday, November 18, 2020

Challengers involved in the landmark kids’ climate case are unlikely to see a boost when Joe Biden takes over the White House next year, even as the president-elect appears poised to begin an administration that is more friendly to their cause.

Under Biden, the Justice Department isn’t expected to change its approach to challenges like Juliana v. United States, which claims a constitutional right to climate protections and calls on the federal government to phase out fossil fuels. The young Juliana challengers lost in the 9th U.S. Circuit Court of Appeals earlier this year, even as the court acknowledged the urgent need for climate action.

Despite the long odds, climate advocates are widely expected to keep making their claims in court.

“The United States is pretty far behind the rest of the world in climate litigation,” said University of Denver law professor Wyatt Sassman. “Some of the theories that have succeeded elsewhere just still haven’t quite been tried here, and I don’t think there’s going to be any lack of plaintiffs willing to try it in this political climate.”

The Juliana challengers, who began their fight against the Obama administration in 2015, are still waiting to hear whether the 9th Circuit will hear their case before a larger panel of judges (Climatewire, March 13).

The litigation remains a cornerstone of the U.S. youth climate movement.

“The case is an incredibly valuable galvanizing tool,” said UCLA law professor Ann Carlson. “To the degree that it can stay alive, it retains potential.”

But the Obama, Trump and future Biden administrations would probably all agree that Juliana asks the courts to take on a role that legally belongs to Congress — as the 9th Circuit found earlier this year, said Bracewell LLP partner Jeff Holmstead.

“The Obama Administration and the Trump Administration took the same position in these cases, arguing that they should be dismissed out of hand,” Holmstead wrote in an email. “To the extent that more of these cases are filed, I would expect the Biden Administration to take the same position.”

Phil Gregory, a lawyer for Our Children’s Trust, which represents the Juliana challengers, told E&E News that the claims raised in the case will remain relevant if the Biden administration doesn’t go far enough on climate.

“I really don’t think that children and future generations will be protected by such things as executive orders,” Gregory said. “What they would be protected by would be judicial declarations of a constitutional right that we seek in Juliana.”

Changing calculus

The Juliana challengers could hit a roadblock — or worse — if their case reaches the Supreme Court.

With the addition of Justice Amy Coney Barrett as the high court’s sixth conservative member, the Supreme Court is even less likely to be persuaded by novel arguments in favor of climate rights.

“All of these cases are finding a hard time achieving a lot of legal success,” said Carlson of UCLA. “And with an increasingly conservative federal bench, it’s hard to imagine any escalation of federal cases.”

A potential Juliana petition could also give the Supreme Court’s newly bolstered conservative majority an opening to rehash certain elements of Massachusetts v. EPA, which said the federal government could regulate greenhouse gas emissions as “air pollutants” under the Clean Air Act.

Holmstead of Bracewell doesn’t expect the high court to relitigate EPA’s authority over greenhouse gas emissions through a potential Juliana case, but the justices could use the dispute as a vehicle to revisit the question of who can sue the government over climate harms.

The possibility is especially concerning to environmental groups that have noted Barrett’s narrow view of standing (Greenwire, Sept. 26).

In order to begin notching wins in court, U.S. climate challengers looking to follow in Juliana’s footsteps may have to get more creative, said Sassman of the University of Denver.

“The calculus has to change because the courts have changed,” he said. “It’s harder to see space for those [cases] in a judiciary that’s very cautious and very resistant to expanding the boundaries of the existing law.”