The Energy 202: Youth climate lawsuit dismissal shows challenge of using courts to tackle climate change

Source: By Dino Grandoni, Washington Post • Posted: Tuesday, January 21, 2020

Kelsey Juliana, of Eugene, Ore., greets supporters and is a lead plaintiff in a lawsuit claiming U.S. energy policies are causing climate change. On Jan. 17, an appeals court panel ruled that the 21 young people suing the federal government did not have standing to bring their case. (Andrew Selsky/AP)

It was supposed to be the “trial of the century.” Now the case won’t even get its day in court.

The dismissal of a landmark, youth-led climate lawsuit late last week is a sign of how hard it will be to use the courts to solve a problem as big as climate change.

That’s a wrench in the plans of environmental advocates and their Democratic allies who are frustrated with Congress’s failure to pass major climate legislation — and have increasingly turned to the court system to stop what they see as the pressing ecological and economic crisis of rising global temperatures.

“From the outset, it was a big ask,” said Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law. “Courts simply do not have it in their power in the United States to command the entire energy system,” he added.

In Friday’s 2-to-1 decision, a panel of federal appeals court judges in Oregon threw out a lawsuit brought by nearly two dozen children and young adults against the U.S. government, my colleague Brady Dennis reported.

The 21 young people and the advocacy group representing them in court, Our Children’s Trust, sought to compel the government to cut its support for fossil fuels and drawn down greenhouse gas emissions. They originally filed their case in 2015.

But the U.S. Court of Appeals for the 9th Circuit ruled that even though the plaintiffs “made a compelling case that action is needed” to cut emissions, the young people ultimately did not have the legal standing to bring the case, known as Juliana v. United States.

This is the second loss for environmental advocates in a much-watched climate case in as many months. In December, ExxonMobil won its legal battle with the state of New York over accusations the oil and gas company misled shareholders about the financial risks of climate change to its bottom line.

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Like the federal appellate judges, New York Supreme Court Judge Barry Ostrager treated the issue of climate change seriously in his ruling in favor of Exxon. “Nothing in this opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change,” he wrote.

But Ostrager found the New York attorney general’s office fell short in showing Exxon violated anti-fraud law when estimating the cost of complying with future climate regulations.

The young plaintiffs made their unsuccessful case based a higher legal power — the U.S. Constitution. They accused the federal government of violating what they claimed to be their constitutional right to a healthy environment with its decades of failure to halt global warming.

The Trump administration, which inherited the case from the Obama administration, contended that no fundamental constitutional right existed and that the issue of combatting climate change should be left to Congress and the White House.

Environmentalists seized on that argument to ask why the Trump administration is rolling back regulations meant to address rising greenhouse gas emissions.

“This ruling underscores this responsibility,” said Ken Kimmell, president of the Union of Concerned Scientists. “We say to the Trump administration and Congress: We are waiting.”

The young people’s argument is not without precedent — at least internationally.

A court in Colombia ordered government to come up with a plan to combat climate change and stop the destruction of the Amazon, pointing to the country’s own constitution. And a court in the Netherlands ruled that the Dutch government’s inaction on climate change violates international human rights law.

But in Oregon, Judge Andrew D. Hurwitz ruled that it was “beyond the power” of his court to force the federal government to set climate policy. That case, Hurwitz wrote, “must be made to the political branches or to the electorate at large.”

The ruling is one in a long line of federal courts, long leery of weighing in on fraught policy questions, kicking the issue of climate change back to their legislative and executive counterparts. The Supreme Court made clear in a 8-0 decision in 2011 that it is up to the experts at the Environmental Protection Agency, not federal judges, to regulate greenhouse gases under the Clean Air Act.

“Courts are still going to have a very vital role to play” in climate change, said Mark N. Templeton, a University of Chicago Law School professor specializing in environmental law. But he added: “The judges seem to think there are limits on this.”

Yet that half-century-old Clean Air Act does not directly address carbon dioxide and other greenhouse gases. The closest Congress has come to comprehensive climate legislation was the last time Democrats fully controlled the legislative branch in 2009, when the House passed a cap-and-trade scheme that died in the Senate.

So as long as Congress remains at an impasse, those demanding immediate action on climate change will turn to the courts.

Several state and city governments, including Baltimore, Rhode Island, San Francisco and Oakland, have pending tort claims against in state courts against oil and gas companies for the damage caused by the heat-trapping pollution of their products.

And a number of candidates for the Democratic presidential nomination, including Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.), have promised to try to hold the oil industry legally liable for climate change should they win.

“[I]f bad actors like Exxon break the rules and deliberately lie to government agencies,” Warren wrote last year, “my plan will treat them the same way the law treats someone who lies in court—by subjecting them to potential prosecution for perjury.”