05 Feb Court Finds Federal Government Actions Responsible for Climate Change, But Powerless

That should have been the media headline reporting on the Court of Appeals decision in the kids’ climate lawsuit, Juliana vs. United States. Instead, the headlines read “Climate Kids Lawsuit Thrown Out”. The media buried the most important findings in this groundbreaking lawsuit that the federal government did not contest the allegations, and that the Ninth Circuit Court of Appeals panel found the evidence compelling and the federal government actions alleged by the plaintiffs to have contributed substantially to climate change. Despite this finding, a divided court reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.

The youth plaintiff’s in this case allege a constitutional right to a “climate system capable of sustaining human life” and seek an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.  The Court’s opinion states “Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”

Julia Olson​, ​executive director and chief legal counsel of ​Our Children’s Trust​ and co-counsel for the youth plaintiffs, commented: “The ​Juliana​ case is far from over. The Youth Plaintiffs will be asking the full court of the Ninth Circuit to review this decision and its catastrophic implications for our constitutional democracy. The Court recognized that climate change is exponentially increasing and that the federal government has long known that its actions substantially contribute to the climate crisis. Yet two of the judges on the Panel refused to set the standard for redressing the constitutional violation, to protect our Nation’s children. The standard is a question of science that should be determined at trial. The majority opinion ignores the fact that we have yet to go to trial on the issue of redressability.”

Justice Hurwitz, in the majority opinion wrote:

“A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”

“The record also conclusively establishes that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions. As early as 1965, the Johnson Administration cautioned that fossil fuel emissions threatened significant changes to climate, global temperatures, sea levels, and other stratospheric properties. In 1983, an Environmental Protection Agency (“EPA”) report projected an increase of 2 degrees Celsius by 2040, warning that a “wait and see” carbon emissions policy was extremely risky. And, in the 1990s, the EPA implored the government to act before it was too late. Nonetheless, by 2014, U.S. fossil fuel emissions had climbed to 5.4 billion metric tons, up substantially from 1965. This growth shows no signs of abating. From 2008 to 2017, domestic petroleum and natural gas production increased by nearly 60%, and the country is now expanding oil and gas extraction four times faster than any other nation.”

“The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.”

“The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions.” [emphasis added]

Despite the fact that a political remedy is out of reach for many of the youth plaintiffs whom are not of voting age, and that the Citizens United case allows for the corruption of the political branch through corporate campaign contributions, two Judges believe that the political branch is the only option and that the judiciary does not have the power to award a remedy. However, Congress provided many of the Agencies implicated with discretion, not an absolute mandate. The Youth plaintiffs intend to seek a full appellate review by the Ninth Circuit. We hope that the full court agrees with the dissenting justice that the Court can fashion a remedy in this case and allows the case to move forward to trial to address the merits of the constitutional right to a “climate system capable of sustaining human life”.