“The First Step in Solving Any Problem is Recognizing There is One[1]” … or, is it?

Analyzing the judicial punting regarding fossil fuels and Juliana v United States

 By: Annabelle Abel

Introduction

 

On January 17, 2020, the United States Court of Appeals for the Ninth Circuit released an opinion illuminating the current social and judicial attitude towards the issue of climate change: admitting to the problem but denying the authority to create or enforce a solution.[2]

Juliana v United States, a case out of Portland, Oregon, draws attention to the multifaceted issue of climate change by utilizing the perspectives of twenty-one young plaintiffs, all under the age of twenty-two years old. The plaintiffs argued that the US, the President, and federal officials collectively permitted the use and extraction of fossil fuels, causing environmental harm.[3] The plaintiffs codified the environmental harms into various constitutional claims, thus alleging that climate change violated substantive due process, equal protection, the Ninth Amendment, and the Public Trust Doctrine.[4]

 

Judicial Punting

 

Juliana’s procedural posture prior to the January 17th opinion speaks to the ability of courts to recognize a problem, but also highlights the courts’ inability to fashion a solution that solves the problem without violating the constitution or overstepping the separation of powers. While the district court found that the plaintiffs presented a viable “danger-creation due process claim,” amongst other things,the district court ordered a stay pending a Ninth Circuit Court of Appeals decision,  effectively taking no real action.[5] Further, the Supreme Court of the United States denied the government’s motion for a stay of proceedings, although noting that “the breadth of respondents’ claim is striking.”[6] Finally, in the appeal to the Ninth Circuit, Circuit Judge Hurwitz held that although the plaintiffs’ claims had some undeniable merit, they “failed to demonstrate that the injunctive relief they sought was within the power of an Article III court, as required for redressability element for Article III standing.”[7]

As a result, the plaintiffs and the public are left without any judicial solution aside from the suggestion to make the same case and arguments to “political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.”[8]  But, with global atmospheric carbon levels skyrocketing to a level not seen in three million years, and with sea levels expected to rise approximately 23 feet by 2100, time is certainly of the essence and voting is no easy feat, especially in the politically charged era created after the 2018 election of President Trump.[9] Of further concern are the steps taken by the Trump Administration to overturn environmental politics enacted by the Obama Administration.[10]

 

The Solution

 

First and foremost, we can vote, we can organize political rallies, and we can take steps in our daily lives to mitigate our own carbon footprints. But with the climate crisis at a truly astronomical global level, grassroots efforts to change the problem feel like merely a drop in the bucket.

However, all hope for a judicial remedy is not lost. As an environmental law professor at Yale Law School hypothesizes, Juliana v United States may have opened the door for further litigation of other, related cases because while no action has been taken on this case, there is widespread judicial recognition of the problem.[11] Further, of the three judges on the Ninth Circuit panel hearing Juliana, one judge wrote a strongly worded dissent, arguing the urgency at hand and the need for judicial intervention.[12]

More optimistically is the fact that in US history, only 1100 climate change cases have ever been brought within the US, and of this number, 50 of these cases are currently pending.[13] While the Juliana panel was split, anything is possible, especially in a more liberal circuit, and the number of climate change cases on the docket suggests a different outcome may come sooner than expected.[14]

Until then, vote, take action, and fight the good fight that the judiciary continues to punt elsewhere. Time is ticking, and our last chance to act is now.

 

 

[1] Aaron Sorkin, The Newsroom (HBO 2012).

[2] Juliana v United States, No. 18-36082 (9th Cir. Jan. 17, 2020) (remanding with instructions).

[3] Id.

[4] Id. (referencing that the public trust doctrine implicates the government’s responsibility to protect certain natural resources for public use and enjoyment).

[5] Juliana v United States, No. 6:15-cv-01517-AA (D. Or. Nov. 21, 2018).

[6] Juliana, supra note 2.

[7] Id.

[8] Id.

[9] Id.

[10] John Schwartz, Young People are Suing the Trump Administration Over Climate Change. She’s Their Lawyer, The New York Times (Oct. 23, 2018), https://www.nytimes.com/2018/10/23/climate/kids-climate-lawsuit-lawyer.html.

[11] Madeleine Carlisle, A Federal Court Threw Out a High Profile Climate Lawsuit. Here’s What is Might Mean for the Future of Climate Litigation, Time (Jan. 19, 2020, 1:43 PM), https://time.com/5767438/climate-lawsuit-kids/.

[12] Id.

[13] Id.

[14] Id.

Published by Law Journal for Social Justice at Arizona State University

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