Government Argues for Halt to Youth Climate Lawsuit, Saying There Is No Constitutional Right to a Stable Climate

Brady Dennis / The Washington Post

PORTLAND (Oregon (June 4, 2019) — A group of young Americans who have spent nearly four years trying to compel the federal government to take action on climate change found themselves back in court Tuesday, arguing that their unprecedented lawsuit should move forward.

And the Trump administration, like the Obama administration before it, was there to argue once again that the lawsuit should be tossed out before it ever goes to trial, both because the plaintiffs do not meet the legal requirements to bring such a suit and because “there is no fundamental constitutional right to a ‘stable climate system.’ ”

The lawsuit, filed in 2015 by 21 young people who argue that the failure of government leaders to combat climate change violates their constitutional right to a clean environment, had been scheduled to go to trial last fall before a district judge in Oregon.

But it was delayed at the last minute while the Supreme Court considered an emergency request from the government. In early November, the court refused to grant the Trump administration’s plea to stop the case before trial, instead sending it back to the US Court of Appeals for the 9th Circuit.

That is where the case, known as Juliana v. United States, got its latest moment in court Tuesday afternoon.

“It is a case that is a dagger at the separation of powers,” Jeffrey Bossert Clark, an assistant attorney general for the Justice Department, argued before a panel of three appeals court judges. He added, “This is a suit that is designed to circumvent a whole bunch of statutes.”

Clark reiterated the arguments that the government has long made in the case: that the lawsuit amounts to an “end run” around the authorities of Congress and federal agencies and that the remedies the plaintiffs are seeking would be unwieldy, unrealistic and unwarranted.

But Julia Olson, the attorney for the plaintiffs and executive director of Our Children’s Trust, insisted that her clients — a majority of whom are now old enough to vote — had been deprived of their fundamental rights as a result of government policies that fuel global warming.

The group’s goal is to compel the government to scale back its support for fossil-fuel extraction and production and to support policies aimed at reducing greenhouse gas emissions.

“When our great-grandchildren look back on the 21st century, they will see that government-sanctioned climate destruction was the constitutional issue of this century,” Olson said.

“We must be a nation that applies the rule of law to harmful government conduct that threatens the lives of our children, so that they can grow up free and pursue their happiness. That is what the founders intended.”

The three judges presiding over Tuesday’s hearing grilled both attorneys on the particulars of their arguments, and they seemed to wrestle with whether the courts could make such sweeping demands of the government.

“Look, you’re arguing for us to break new ground,” Judge Andrew D. Hurwitz told Olson at one point. “You may be right. I’m sympathetic to the problems you point out. But you shouldn’t say this is just an ordinary suit. . . . You’re asking us to do a lot of new stuff, aren’t you?”

“We’re asking the court to apply bedrock constitutional law and principles to a wholly new set of facts,” Olson replied.

In a congressionally mandated report last fall, the federal government detailed how the effects of climate change, including deadly wildfires, increasingly debilitating hurricanes and heat waves, are already battering the United States — and how the risk of more such catastrophes is worsening.

Produced by 13 federal departments and agencies, along with outside researchers, the National Climate Assessment stretched more than 1,000 pages. Its authors argued that climate change “is transforming where and how we live and presents growing challenges to human health and quality of life, the economy, and the natural systems that support us.” 

The Supreme Court’s three-page order in November, which sent the case back to the 9th Circuit, noted the government’s assertion that the “suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate as enjoyed by prior generations.”

The justices acknowledged that the 9th Circuit had previously turned down the government but said those decisions came when there was a “likelihood that plaintiffs’ claims would narrow as the case progressed.” That no longer seems the case, the unsigned opinion said, suggesting the possibility that the 9th Circuit might see things differently now.

The order also left open the possibility that the government could ultimately return to the Supreme Court.

In briefs to the Supreme Court, Solicitor General Noel J. Francisco wrote that “the assertion of sweeping new fundamental rights to certain climate conditions has no basis in the nation’s history and tradition — and no place in federal court.”

Even before Tuesday, lawyers in two administrations had made similar arguments in lower courts. But again and again, judges allowed the case to proceed.

In an interview last fall, Olson was optimistic that the young plaintiffs will get the trial they seek.

“We’ve been confident throughout this case that we would get to trial, and I believe we will get to trial,” she said. “We have overcome everything the government has thrown at us. It is not luck. It is the strength of the case and the strength of the evidence and the strength of the legal arguments we are making.”

Brady Dennis is a national reporter for The Washington Post, focusing on the environment and public health issues. He previously spent years covering the nation’s economy. Dennis was a finalist for the 2009 Pulitzer Prize for a series of explanatory stories about the global financial crisis.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes

Question of the Century: Do We Have a Right to a Livable Climate?

Valerie Brown / The Revelator

The Youth v. Gov lawsuit moves forward this week, and it could help determine if US citizens have a constitutional right to a safe environment

 (June 3, 2019) —The climate is changing, the changes are human-caused, and most of them will be detrimental to people and ecosystems. But while public sentiment and plausible policy measures on these threats have been maturing in recent years, the law has not kept up.

Today climate change as a legal matter remains blurry and disconnected from the principles our system of government aspires to follow. The question remains unanswered: Do we — including future generations — have a legal right to a climate in which we can pursue our rights to life, liberty, property and happiness?

This is the question that a case called Juliana, et al. v. United States has thrown like a crowbar into the American legal system. If strong enough leverage is applied by the case and any resulting ruling, the whole edifice of environmental law and its position in constitutional law will undergo a deep shift.

Juliana — better known as Youth v. Gov — was filed in 2015 in the US District Court in Eugene, Oregon, on behalf of 21 young plaintiffs and climate scientist James Hansen, serving in this case as a guardian for future generations. Our Children’s Trust is the Eugene-based nonprofit sponsoring the case.

Since it was filed, the defendant (the US government) has made five appeals to higher courts — three to the Ninth Circuit Court of Appeals and two to the US Supreme Court — to throw the case out on various procedural and summary motions. Currently its third appeal to the Ninth Circuit hangs in the balance, with oral argument before a three-judge panel set for June 4 in Portland.

AThe plaintiffs have astonished legal experts by persisting through these attempts to prevent the case from coming to trial under District Court Judge Ann Aiken.

“We’re confident we’re right,” says Andrea Rodgers, an Our Children’s Trust staff attorney. “Our hope is that the Ninth Circuit will issue a very narrow decision that will bring us back to trial as soon as humanly possible.”

Aiken has already stated in a November 2016 ruling related to this case that in her “reasoned judgment…a climate system capable of sustaining human life is fundamental to a free and ordered society” — but she also dismissed one of plaintiffs’ claims, that the Ninth Amendment assures just such a right even though it is unenumerated in the Constitution, unlike the guarantees of due process and equal protection made explicit in the Fifth and 14th Amendments.

Climate as Public Trust — Innovative Concept or Wild Speculation?

This has not stopped the plaintiffs, however, because they have also made arguments under those amendments, based mainly on the public trust doctrine. This is the principle that certain resources — those necessary to everyone, such as air and water — must be protected and managed so as to remain available to future generations. It is considered a property right.

Does that apply to the climate? That’s an argument made over the past two decades by Mary Christina Wood, director of the Oregon School of Law’s Environmental and Natural Resources Law Center, who asserts that the public trust doctrine applies to the climate system, and particularly to the atmosphere.

“We would be fools to not recognize such law as the supreme law of the land, or ever to doubt for a moment that the jurisdiction over our very survival falls first to the air, the waters, the food sources, and the climate system,” Wood said last year in a keynote address to the University of Colorado Boulder Law School.

Public trust reasoning has been used at least since the sixth-century Roman emperor Justinian declared that “the air, running water, the sea, and consequently the shores of the sea” belong to everyone. English law interpreted this very narrowly to mean that the public should have access to paths and beaches leading to public waters in order to enjoy benefits like fishing, bathing, and boating.

Although Wood and other experts say that the public trust can also apply more broadly to climate, conservative legal scholars, perhaps obviously, disagree. James Huffman, a professor at Lewis & Clark Law School and an affiliate of the conservative Heritage Foundation, says he would like to see American law stick to the “paths and beaches” interpretation.

“It was a very narrow doctrine…and that was the extent of the theory as a legal matter,” Huffman says. “There are no cases that get it away from water.”

But the Juliana plaintiffs have shown that the federal government considers itself a trustee over several other kinds of natural resources, including forests and wildlife. A win by the Juliana plaintiffs would achieve what American University legal scholar David B. Hunter called for in 1988 — “to switch the debate in public trust cases from a discussion of the doctrine’s historical roots to a discussion of the ecological values that should be protected in the public interest.”

Isn’t It Obvious?

To a non-lawyer, a right to a livable climate and an uncontaminated environment may seem blatantly obvious. They surely are so fundamental that they precede the rights guaranteed by the Constitution, because without them, life, liberty and the pursuit of property and happiness are impossible, or at least severely constrained. That is, they are natural and inalienable rights, endowed by a creator or at least existing in such a pervasive way that no political agreement or government should be able to remove them.

The Declaration of Independence and the Constitution recognize both the naturalness and inalienability of fundamental rights, because the framers valued these concepts and intended them to be part of the new American law.

But it’s not always that obvious from a legal standpoint. Bizarrely, the authority for regulating pollution relies on the Constitution’s Commerce Clause, based on the idea that natural resources are commodities that can be commercially exploited.

Along those lines the federal government has tried to make Juliana about pollution, citing Guertin v. Michigan, an appeal in the Flint water contamination case, in its recent appeal brief, which stated that the “Constitution does not guarantee a right to live in a contaminant-free, healthy environment.” Notably, in a case Guertin relied on, the government minimized a statementthat Juliana represents “an arguable exception” in the debate.

But Juliana is not following previous environmental arguments.

“We are not advocating for a right to be free of pollution,” says Rodgers. Rather they’re advocating for the government to stop harming children by continuing policies that alter the climate.

For example, the government has known since 1965 that burning fossil fuels changes the climate by releasing too much carbon dioxide into the atmosphere, and has ignored the advice of its own experts in favor of granting leases for fossil fuel extraction on public lands.

Staff attorney Andrew Welle adds that the right to a livable climate is entirely in line with already recognized rights to “life, property, personal security, and family autonomy,” as well as the privacy right inherent in autonomy.

“Madison and other founders based [the Constitution] on naturalist philosophy and concern for intergenerational equity,” he says, noting that the latter requires equal protection under the 14th Amendment.

Intrusive Courts?

Huffman, the conservative legal expert, believes that if Juliana prevails it will result in the judiciary deciding on policy rather than the legislature and will create “a separation of powers problem, a democracy problem and a rule of law problem.” In his view courts should not prescribe specific steps to the executive branch.

Juliana, however, does not propose imposing detailed policy actions on the executive branch, and according to Welle there is precedent for the type of remedy the case seeks in many complex cases and bankruptcy proceedings.

“When a court finds a constitutional violation, it doesn’t say this is exactly what you have to do to correct the problem.” Rather, he says, “The court says, ‘You need to come up with a plan of your own devising and bring it back to the court to correct the problem,’ so specific policies are left to other branches.”

Juliana wants the courts to recognize a right to a livable climate based on the same reasoning that led to school integration, reproductive choice and gay marriage — and to get the government to stop doing things that make climate change worse. It’s these actions that foreclose the young plaintiffs’ ability to lead the lives our founding documents promise.

The Right Tool for the Right Job

The law is slower to adapt to changing conditions than the other two branches of government, and looking to the court to impel progress on climate change seems quixotic — except that the legislative and executive branches have failed to halt or mitigate the climate crisis for nearly half a century, and time is of the essence.

Admittedly, the tools plaintiffs are using in their monumental attempt to refurbish our national values and policies in time to apply the brakes to climate change — natural and inalienable rights; explicit rights to life, liberty, happiness, property, education, privacy; equal protection under the law; and the public trust doctrine — may not be up to the task.

It’s not clear yet whether Juliana will be allowed to come to trial and the plaintiffs’ massive trove of factual material and expert opinion be entered into the public record. But if it is, Aiken has already signaled that she intends to modernize environmental jurisprudence, writing in her November 2016 order, “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

Any trial court judgment will certainly be appealed by the loser. Few observers expect the higher courts — especially the Supreme Court — to sympathize with the plaintiffs’ approach.

Securing that sympathy will occur only if the plaintiffs can offer the justices the legal equivalent of stepping stones they can use to cross the stream of conflict and reach the other side in a way that doesn’t violate their reading of the Constitution, settled law and their political leanings.

It’s a huge gamble, but the stakes are literally life and death for both people alive today and their descendants. Will the courts value tradition over dire present danger? Huffman believes they should. He would rather die with his privacy rights intact, he says, than accept what he sees as Juliana’s goal of government force crushing individual freedom and privacy.

But as Juliana’s complaint states: “Without a stable climate system, both liberty and justice are in peril…. Fundamental to our scheme of ordered liberty, therefore, is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO₂. Plaintiffs hold these inherent, inalienable, natural, and fundamental rights.”

In fact, the climate crisis could be viewed as a right-to-life problem. Because without a climate capable of sustaining human life, the public’s right to life at all is destroyed.

Based in the Willamette Valley, Valerie Brown writes about science and environmental issues including climate, chemical regulation, radiation exposure, microbiology, and other subjects. Her work has appeared in Inside Science, Scientific American, Science, High Country News, Pacific Standard, and Environmental Health Perspectives.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.