The Juliana v. U.S. climate change litigation (better known as part of the Children’s Climate Crusade) is back in the spotlight. The case was filed in Oregon U.S. District Court in 2015 on behalf of future generations to force governmental action on climate change. In a previous post from November 2016, our colleague Rick Glick considered whether Trump’s election would bring greater urgency and likelihood of success to Juliana and similar attempts to address climate change through the courts. We’re now one step closer to finding out, as the battle before the Ninth Circuit began in earnest with the filing of the government’s opening brief last Friday seeking dismissal of the case.

This follows more than two years of dramatic pre-trial skirmishing. On November 10, 2016, Judge Aiken denied the government’s motion to dismiss the complaint, concluding that: “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.” In response, the government took the extraordinary step of asking the U.S. Supreme Court and the Ninth Circuit to terminate the case. When both courts declined, the government returned to again seek dismissal from Judge Aiken, but she declined to do so last October 15. Then, only days before the beginning of a scheduled 10-week trial, the government finally won a reprieve when Judge Aiken certified an interlocutory appeal to the Ninth Circuit, putting the trial on hold while the Ninth Circuit decides if the case should be dismissed.

Last Friday’s brief tees up four primary issues that will determine whether the case eventually goes to trial:

  1. Are the plaintiffs’ climate grievances sufficiently specific to constitute a “case or controversy”?

First, the government argues that the plaintiffs lack standing because their allegations do not constitute a “case or controversy” under Article III of the Constitution. According to the government, plaintiffs “have only a generalized grievance and not the required particularized injury because global climate change affects everyone in the world.” As a result, the government argues that the plaintiffs “cannot plausibly connect their narrow asserted injuries — like flooding or drought in their neighborhoods — to any particular conduct by the government.” The government also argues that the court cannot remedy the claimed injuries, another requirement of standing.

This is a high hurdle for the plaintiffs. The government argues that a single federal judge should not be allowed to “seize control of national energy production, energy consumption, and transportation” in ways that would address the alleged harms.

  1. Must the plaintiffs’ claim conform to the requirements of the APA?

The second issue is whether a claim that the federal government is not doing enough to control carbon emissions must fit within the constraints of the Administrative Procedure Act. Under the APA, one may appeal specific governmental decisions, but the Juliana plaintiffs take a much broader approach, arguing that the federal government must develop and implement a national plan to stabilize the climate system.

  1. Do future generations have a Constitutional right to a stable climate?

The third issue is the most interesting: whether future generations of Americans have a Constitutional right to a stable climate. In this regard, the plaintiffs rely on the Fifth Amendment’s Due Process Clause, which provides that “No person shall be . . . deprived of life, liberty, or property, without due process of law.”

Judge Aiken agreed that there is a fundamental Constitutional right to a “climate system capable of sustaining human life,” and held that the plaintiffs had adequately alleged infringement of that right. To this the government’s brief responds bluntly: “Plaintiffs’ alleged fundamental right to a ‘livable climate’ finds no basis in this Nation’s history or tradition and is not even close to any other fundamental right recognized by the Supreme Court.” However this issue is decided, the consequences for future climate change litigation will be enormous.

  1. Does a failure to adequately limit carbon emissions violate the public trust doctrine?

Finally, the plaintiffs have invoked the public trust doctrine, a rather amorphous body of law that—where applicable—obligates a government to protect resources needed for future generations. Judge Aiken accepted this theory, concluding that the federal government has a duty to maintain a healthy climate for the benefit of the public. Among other arguments, the government counters that the public trust doctrine is a matter of state law, and is not applicable to the federal government.

Next steps 

The plaintiffs’ responsive brief is due on February 22, 2019, and the government’s reply is due by March 8, 2019. Oral argument has not yet been scheduled.

Down the road, Juliana will very likely end up before the Supreme Court, where the plaintiffs’ prospects appear fairly grim, but a lot can happen between now and then. With the impacts of climate change increasingly evident, how will the courts respond to the fact that the other two branches of the federal government are doing nothing, and that President Trump calls climate change a hoax? Will judges stick to a more traditional approach and let the other two branches eventually figure it out (or not)? Or does prolonged inaction by the other branches potentially move the judicial branch to take a broader, more assertive approach to an urgent problem?

Only time will tell; stay tuned for future updates.