July 27, 2020

Juliana, Climate Change, and the Constitution

by Robin Kundis Craig

Unlike a growing number of constitutions around the world and in specific states, the U.S. Constitution provides no environmental rights. It does not mention the environment, and a long history of federal court constitutional environmental jurisprudence stands squarely against the finding of such a protection. In 1971, for example, the U.S. Court of Appeals for the Fourth Circuit dismissively refused to recognize a constitutional right to environmental protection to reinforce the newly enacted National Environmental Policy Act. Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). Over two decades later, and despite dozens of intervening cases, the U.S. Court of Appeals for the Eighth Circuit could equally boldly assert that citizens of the United States do not “have a fundamental right to an environment free of non-natural radiation.” Concerned Citizens of Nebraska v. Nuclear Regulatory Commission, 970 F.2d 421, 426 (8th Cir. 1992).

Nevertheless, plaintiffs keep trying. Indeed, citizens have argued without success for almost 50 years now that the U.S. Constitution contains, somewhere, a right to a clean and healthy environment. Until 2016, federal courts said “no” to every possible source of a constitutional environmental right these plaintiffs proffered, including: (1) Fifth and Fourteenth Amendment rights to life, e.g. Gasper v. Louisiana Stadium & Exposition District, 577 F.2d 897, 898–99 (5th Cir. 1978); (2) the Ninth Amendment’s protection of other fundamental rights, e.g. Concerned Citizens of Nebraska, 970 F.2d at 426-27; (3) Fifth and Fourteenth Amendment Due Process, e.g. Valero Terrestrial Corp. v. McCoy, 36 F. Supp. 2d 724, 752-53 (N.D. W. Va. 1997); and (4) Fifth and Fourteenth Amendment equal protection. See, e.g., Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1429–30 (9th Cir. 1989). Moreover, just to ensure that all avenues are blocked, the U.S. Court of Appeals for the D.C. Circuit recently also made clear that constitutional environmental rights arising under state constitutions do not create rights under the U.S. Constitution. Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, 243 F. Supp. 3d 141, 152–53 (D.D.C. 2017), aff’d, 895 F.3d 102, 108–10 (D.C. Cir. 2018).

So, federal court precedent wasn’t exactly favorable in 2015 when a group of 21 children filed suit against the United States, claiming that a variety of federal defendants were violating their Fifth Amendment substantive due process rights by failing to address climate change. Specifically, paragraph 279 of the First Amended Complaint in Juliana v. United States alleges:

Our nation’s climate system, including the atmosphere and oceans, is critical to Plaintiffs’ rights to life, liberty, and property. Our nation’s climate system has been, and continues to be, harmed by Defendants. Defendants harmed our nation’s climate system with full appreciation of the results of their acts. Plaintiffs’ substantive Fifth Amendment rights have been infringed because Defendants directly caused atmospheric CO2 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs. The present CO2 concentration and continuing CO2 emissions—a function, in substantial part, of Defendants’ historic and continuing permitting, authorizing, and subsidizing of fossil fuel extraction, production, transportation, and utilization—endangers Plaintiffs’ lives, liberties, and property.

The children also asserted Equal Protection, Ninth Amendment, and public trust doctrine claims.

The next year, the U.S. District Court for the District of Oregon made constitutional history when it held that there is indeed a fundamental due process right to a stable climate system, because “a stable climate system is a necessary condition to exercising other rights to life, liberty, and property.” Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016). It was careful, however, to limit this newfound constitutional environmental right:

In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase “capable of sustaining human life” should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.

Id. Nevertheless, the district court’s decision was subject to two years of legal maneuvering. This included the district court’s denial of the United States’ motion for interlocutory appeal, Juliana v. United States, 2017 WL 2483705 (D. Or. June 8, 2017), two trips by the United States to the Ninth Circuit, In re United States, 884 F.3d 830, 837–38 (9th Cir. Mar. 7, 2018), In re United States, 895 F.3d 1101, 1106 (9th Cir. July 20, 2018), and one to the U.S. Supreme Court, United States v. U.S. District Court for District of Oregon, 139 S. Ct. 1, 1 (July 30, 2018), seeking mandamus, all denied. After the district court again refused to grant interlocutory appeal in Juliana v. United States, 339 F. Supp. 3d 1062, 1076–80, 1084–96, 1104–05 (D. Or. Oct. 15, 2018), the United States made a renewed appeal to the U.S. Supreme Court, which first stayed the case, In re United States, 139 S. Ct. 452, 453 (Nov. 2, 2018), but then vacated its own order 19 days later. The Ninth Circuit then stepped in and stayed the case, inviting the district court to revisit its decisions regarding an interlocutory appeal, United States v. U.S. District Court for District of Oregon, Case No. 18-73014, Order Dated Nov. 8, 2018 (9th Cir. 2018), and the district court finally capitulated. Juliana v. United States, 2018 WL 6303774 at *3 (D. Or. Nov. 21, 2018). The Ninth Circuit accepted the interlocutory appeal but again denied mandamus. Juliana v. United States, 2018 WL 10426470 (9th Cir. Dec. 26, 2018). It heard oral argument in the case on June 4, 2019, and it issued its decision reversing the district court on January 17, 2020. Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020).

After all that maneuvering, however, the Ninth Circuit’s anticlimactically decided not to rule on the constitutional right to a stable climate. Instead, it decided 2–1 (Judge Staton dissented) that the plaintiffs lacked Article III standing because the federal courts could not force the federal government to come up with a climate change action plan. Id. at 1173–74.

Notably, the court accepted the children plaintiffs’ factual claims, concluding that climate change is occurring and will wreak havoc on the planet if left unchecked, that fossil fuel combustion is the main cause of climate change, and that “that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions.” Id. at 1166. Despite such knowledge, “[t]he 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.” Id. at 1167. The court also made short work of the United States’ argument that the plaintiffs’ only remedy was the Administrative Procedure Act. Id. at 1167–68.

The court even accepted most of the plaintiffs’ Article III standing allegations. The children were suffering concrete and actual injuries in fact, such as when water scarcity forced Jaime B. to leave the Navajo Reservation and her family, or Levi D. had to flee his coastal home because of flooding. Id. at 1168. The Ninth Circuit also agreed with the district court that the plaintiffs had established causation:

The plaintiffs’ alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. A significant portion of those emissions occur in this country; the United States accounted for over 25% of worldwide emissions from 1850 to 2012, and currently accounts for about 15%. . . . And, the plaintiffs’ evidence shows that federal subsidies and leases have increased those emissions. About 25% of fossil fuels extracted in the United States come from federal waters and lands, an activity that requires authorization from the federal government.

Id. at 1169.

However, the Ninth Circuit disclaimed its own authority to help these plaintiffs, even assuming a constitutional right exists. A simple declaration that the United States is violating the Constitution would do almost nothing to redress the plaintiff’s concrete injuries. Id. at 1170. Instead, the plaintiffs’ real remedy requires the intervention of the political branches. In enjoining the federal government from permitting, authorizing, and subsidizing fossil fuel use and ordering it to prepare a climate change action plan to reduce emissions and atmospheric CO2 concentrations, the court would not only have “to enjoin the Executive from exercising discretionary authority expressly granted by Congress, . . . but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands . . . .” Id. According to the majority, “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.” Id. at 1171. As a result, the court could not redress the plaintiffs’ injuries, and they lacked standing.

Judge Staton passionately disagreed, calling on his colleagues to prevent the government from destroying the nation:

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. . . .

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress.

Id. at 1175–76 (Staton, J., dissenting).

On March 2, 2020, the Juliana plaintiffs requested a rehearing en banc from the Ninth Circuit, so it remains to be seen if the constitutional right to a stable climate has suffered death by (lack of) standing. Hopefully not: it is both perverse and ironic that (perceived) constitutional limitations on the federal courts could prevent full litigation of this asserted constitutional right—particularly given that the judges themselves acknowledge that the United States continues to race along the path toward severe climate disruption.

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Robin Kundis Craig

Ms. Craig is the James I. Farr Presidential Endowed Professor of Law at the University of Utah S.J. Quinney College of Law in Salt Lake City, UT, and is a member of the editorial board of Natural Resources & Environment. She may be reached at robin.craig@law.utah.edu.