“The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.” – Donald Trump*
** Joseph Rossi
In 2015, a group of twenty-one children filed an official complaint against the United States government, then-President Barack Obama, and several governmental agencies, including the Environmental Protection Agency (EPA). Juliana v. United States, 217 F.Supp.3d 1224, 1233 (D. Or. 2016). In the complaint, these children alleged that the government had infringed on their rights by failing to ensure a habitable climate for their future, despite decades of knowledge of the risks posed by man-made climate change. Complaint at 3-6, Juliana v. United States, 217 F.Supp.3d 1224 (D. Or. Aug. 12, 2015) (No. 6:15-cv-01517-TC). In the history of the United States court system, the government has been sued for climate change close to 900 times, but these claims have been dismissed due to various reasons related to the plaintiffs’ standing or claim of injury. See Katy Scott, Can ‘Climate Kids’ Take on Governments and Win?, Cable News Network (July 24, 2018, 10:51 PM), https://www.cnn.com/2018/07/24/health/youth-climate-march/index.html. In 2016, however, Juliana v. United States became the first such case of private citizens suing the government to survive the government’s motion for dismissal. See Juliana, 217 F.Supp.3d at 1262. Juliana, which is currently being argued in front of the Ninth Circuit, has the potential to drastically change not only the course of environmental law, but the entire environmental policy of the United States regarding climate change. Id.
At the time of filing, the twenty-one plaintiffs’ ages ranged from eight to nineteen years old. Complaint, supra, at 6–36. Climatologist James Hansen is the twenty-second plaintiff, representing “future generations” and is listed as the guardian of their interests. Complaint, supra, at 3. While the suit sought to protect the future of all youth in the country, the twenty-one listed plaintiffs were chosen because of the concrete injury they had suffered due to climate change. John Schwartz, Young People Are Suing the Trump Administration over Climate Change. She’s Their Lawyer., N.Y. Times (Oct. 23, 2018), https://www.nytimes.com/2018/10/23/climate/kids-climate-lawsuit-lawyer.html. From abandoning their homes due to excessive coastal flooding in Florida, to those in the Southwest who were forced to relocate because of rapid desertification, these children all allege that their home lives have been drastically altered by environmental changes. See generally Complaint, supra.
The plaintiffs have raised two separate arguments in their filings. Complaint, supra, at 1–5. Their first argument rests on the public trust doctrine. Complaint, supra, at 33–34. Briefly, the public trust doctrine is an old common law idea that ensures public resources are controlled by the government, and are used to benefit its constituents. Randall S. Abate, Atmospheric Trust Litigation in the United States: Pipe Dream of Pipeline to Justice for Future Generations?, in Climate Justice: Case Studies in Global and Regional Governance Challenges 543, 552 (Randall S. Abate ed., 2016). While the doctrine originally ensured waterways were under government control to maintain fish populations and free public navigability, it has since been extended to other areas like public land use. Id. at 551–52. The plaintiffs seek to extend this doctrine of maintaining natural resources to the benefit of citizens to the Earth’s atmosphere, a resource that all people enjoy. Complaint, supra, at 33. This budding field of law based on the public trust doctrine, called atmospheric trust litigation, has received much attention from legal scholars, but has yet to be successfully invoked in the courts. Abate, supra, at 545.
Alternatively, the plaintiffs have asserted that their Fifth Amendment Due Process rights have been violated. Complaint, supra, at 84. They argue that, inherent in their rights to life and liberty, is the right to a habitable climate. Complaint, supra, at 84–85. While no explicit right to a habitable environment can be found in the Constitution, the plaintiffs cited the Obergefell decision, which created the fundamental right of same-sex marriage, as evidence of the Supreme Court recently creating and recognizing otherwise un-enunciated rights. Complaint, supra, at 94. They further argue that, as the youth of the country, they are the ones that must deal with the consequences of the current administration’s actions, yet they currently have no voting rights to influence the government’s current course of action, a separate due process violation. Complaint, supra, at 89. These arguments go beyond any statutorily imposed duty, like the Clean Air Act, and appeal to a deeper sense of a violation of the children’s fundamental Constitutional rights, which cannot be exercised if there is no planet to exercise them on. Juliana, 217 F.Supp.3d at 1261.
The United States government has unsuccessfully moved to dismiss the case on several theories. Id. at 1262. Although President Trump’s administration denies the existence of climate change and its effects on the environment, it interestingly has not raised that argument in court. Coral Davenport & Eric Lipton, Trump Picks Scott Pruitt, Climate Change Denialist, to Lead E.P.A., N.Y. Times (Dec. 7, 2016), https://www.nytimes.com/2016/12/07/us/politics/scott-pruitt-epa-trump.html; Schwartz, supra. First, the government questions their standing. Juliana, 217 F.Supp.3d at 1242. The landmark case of Massachusetts v. EPA was the first case that showed that failure to address climate change is a cognizable injury that can satisfy standing requirements, and the plaintiffs argue standing for similar reasons. See Massachusetts v. EPA, 549 U.S. 497, 526 (2007). However, Juliana is distinguishable from Massachusetts in two important ways. First, the plaintiff in Massachusetts was a state, not a private individual. See Massachusetts, 549 U.S. at 526. Because of its sovereign status, the state had an overarching interest in protecting its coastal borders and citizens, injuries a private citizen cannot directly claim. Id.
Second, the issue at hand in Massachusetts was more concrete and cognizable. See id. at 507. There, Massachusetts was suing the EPA for failure to meet the emission benchmarks it had set for itself and was making little effort to do so, and Massachusetts sought to compel the EPA to meet its own standards. Id. In Juliana, the youths’ claim is more broadly the general threat of climate change and the government’s overall failure to address it, rather than any specific instance of failure. Complaint, supra, at 1–5.
Alternatively, the government argues that climate change is strictly a policy-related question and is therefore outside of the purview of the Judicial Branch. Juliana, 217 F.Supp.3d at 1236. Agencies like the EPA are generally considered to be extensions of the Executive Branch, with quasi-legislative and judicial functions. See Massachusetts, 549 U.S. at 520. The government argues that ordering the EPA to fight climate change would directly conflict with the exclusive power of the Executive Branch. Juliana, 217 F.Supp.3d at 1236.
When the case was filed, the government, along with multiple intervening fossil fuel industry groups, filed a motion to dismiss based on the two arguments above, and, although the reviewing Magistrate Judge, Thomas Coffin, described the case as “unprecedented,” he recommended denying the motions. Schwartz, supra; Juliana, 217 F.Supp.3d at 1235. In a turn that garnered the case national attention, Ninth Circuit District Court Judge Ann Aiken affirmed the Magistrate Judge’s recommendation, stating that in “exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Juliana, 217 F.Supp.3d at 1250.
The case was scheduled to go to trial on October 29, 2018, in front of Judge Aiken. See Juliana v. U.S. – Climate Lawsuit, Our Children’s Trust, https://www.ourchildrenstrust.org/us/federal-lawsuit/ (last visited Nov. 17, 2018). Yet, on October 19, the government filed an emergency motion through the Department of Justice to the Supreme Court to stay the case, raising all the above-mentioned questions of standing and highlighting the government’s burden of having to litigate such an amorphous case. Amy Howe, Government Returns in Climate Change Lawsuit (UPDATED), SCOTUSblog (Oct. 19, 2018, 7:22 PM), http://www.scotusblog.com/2018/10/government-returns-in-climate-change-lawsuit/. In an unprecedented decision, Chief Justice John Roberts stayed the pending Ninth Circuit trial. Id. Because of how close the stay was implemented to the trial date, Judge Aiken vacated the October 29 scheduled date. Juliana v. United States of America, Court Listener (Nov. 13, 2018, 10:10 AM), https://www.courtlistener.com/docket/5499763/juliana-v-united-states-of-america/?page=4#entry-404/. Currently, the case is still stayed while the Ninth Circuit reviews the government’s interlocutory appeal on these issues of standing. Id.
Because of the novelty of this case in environmental litigation, there are several important questions surrounding this case that precedent does not adequately address. Scott, supra. While Massachusetts v EPA gives a few guidelines, Juliana poses several new issues. Compare Massachusetts v. EPA, 549 U.S. 497, 533–35 (2007) with Juliana v. United States, 217 F.Supp.3d 1224 (D. Or. 2016). How would a court mandate the government address climate change? Davenport & Lipton, supra. Would it oversee the process, or force the government to comply with a third party’s plan? Davenport & Lipton, supra. Can the courts force the EPA to address a problem that 99% of the scientific community believes exists, but the EPA itself denies? Davenport & Lipton, supra. Right now, any attempt to answer would be purely speculative, but Juliana has the potential to open the floodgates of environmental litigation, or firmly shut the door to these issues for the foreseeable future.
* @realDonaldTrump, Twitter (Nov. 6, 2012, 11:15 AM), https://twitter.com/realdonaldtrump/status/265895292191248385?lang=en.
** Joseph Rossi is a second-year student at the University of Baltimore School of Law, where he is a staff editor for the University of Baltimore Law Review. He is also a Law Scholar for Professor Amy Sloan’s ILS/Torts course. He spent this past summer as an intern for both Murphy, Falcon & Murphy and the Hon. Mark F. Scurti in the Maryland District Court for Baltimore City.