“Let our case be heard.” This was the simple ask of 21 youth plaintiffs in Juliana v. United States. These 21 youths are at the center of a legal challenge of the federal government’s affirmative actions causing climate change by asking the government to end its role in the use and development of fossil fuels. Compl. at 1–2, Juliana v. United States, 217 F.Supp. 3d 1224 (D.Or. 2016), No. 6:15-cv-01517-TC. This landmark climate lawsuit contends that the government’s active role in accelerating climate change violates the youths’ constitutional rights to life, liberty, public trust, and equal protection under the law. In making this claim, Juliana’s request for declaratory relief and systemic equitable relief is no different from Brown v. Board of Education, 347 U.S. 483 (1954), or Obergefell v. Hodges, 576 U.S. 644 (2015), which respectively asked the Supreme Court to denounce unconstitutional policies and to acknowledge fundamental rights to equal educational opportunities and the freedom to marry.
Despite Juliana’s intuitive claim that there should be a fundamental right to a climate capable of sustaining human life, a panel of the U.S. Ninth Circuit Court of Appeals dismissed the case in January 2020. Juliana v. U.S., 947 F.3d 1159, 1164 (9th Cir. 2020). The majority opinion of Judge Andrew Hurwitz made clear there is “a compelling case that action is needed” because “the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change.” Id. at 1157. The majority opinion also acknowledged that the record clearly shows the federal government’s knowledge of the risks of fossil fuels and increasing CO2 emissions. However, the merits of Juliana’s “compelling case” were ultimately ignored in the decision because the court believed that, for purposes of standing, one component of the relief requested by the youth plaintiffs was outside the court’s Article III power. Id. The majority contravened Supreme Court precedent, such as Brown, in holding it is “beyond the power of an Article III court to order . . . the plaintiffs’ requested remedial plan.” Id. at 1164. As Judge Josephine L. Staton pointed out in her dissent: “Plaintiffs’ request for a ‘plan’ is neither novel nor judicially incognizable,” but “consistent with [] historical [remedial] practices,” where the government’s policies and programs infringe individual constitutional rights. Id. at 1188. The majority’s analysis negated uncontradicted evidence showing material factual issues as to the viability of a remedial plan to redress plaintiffs’ injuries, facts that would be determined utilizing expert evidence at trial. Instead, the majority held it was up to the other two branches of government to change federal policies.
After this decision, the youth petitioned for en banc review. However, the Ninth Circuit denied the petition for rehearing en banc. Juliana v. U.S., 986 F.3d 1295, 1296 (9th Cir. 2021). Today, the future of Juliana and the right to a habitable environment hangs in the balance.
After the mandate was issued in Juliana, plaintiffs are asking permission of the district court to amend their complaint to move the case toward a trial on the merits. More specifically, Judge Staton’s dissent made clear that:
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.
Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). Since the Ninth Circuit has already accepted that climate change poses a real threat to habitability, the only issue left is whether a broad declaration of law and other equitable remedies can redress the plaintiffs’ claims under Article III.
Whether liberal or conservative, attorneys should be concerned with the majority decision in Juliana. The redressability component of the majority’s standing decision places at risk the ability of the federal judiciary to decide cases and controversies and to espouse the system of checks and balances vital to our nation’s separation of powers. For purposes of standing, the uncontradicted evidence is that these youth are being harmed by both the action and inaction of the government. We would all agree that when governmental conduct catastrophically harms American citizens, the judiciary is constitutionally required to perform its independent role and determine whether the challenged conduct, not exclusively committed to any branch by the Constitution, is unconstitutional.
Article III standing requires plaintiffs to show that: (1) they have suffered some actual or threatened injury; (2) their injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Redressability “examines the causal connection between the alleged injury and the judicial relief requested.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). “While redressability must not be speculative, it need only be ‘likely,’ not certain.” Ala.-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244, 1256 (11th Cir. 2003); see also Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994) (“to have standing, a federal plaintiff must show only that a favorable decision is likely to redress his injury, not that a favorable decision will inevitably redress his injury”); Family & Children’s Ctr., Inc. v. Sch. City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir. 1994) (“the plaintiff need not show absolutely that a favorable judgment would redress his injury; a probabilistic benefit from winning a suit is adequate”).
Additionally, the injury need not be completely redressable; it is sufficient that the injury be partially redressed. Meese v. Keene, 481 U.S. 465, 476 (1987) (“enjoining the application of the words ‘political propaganda’ to the films would at least partially redress the reputational injury of which appellee complains”); Massachusetts v. EPA, 549 U.S. 497, 525 (2007) (plaintiff “need not show that a favorable decision will relieve his every injury”). Courts often proceed on the assumption that a favorable judicial decision will provide meaningful relief—even if not complete relief—to a party who alleges an injury to his or her constitutional rights. In Juliana, the issue of redressability is crucial because the Ninth Circuit’s decision—when read literally —prohibits the federal judiciary from using broad remedies to even partially tackle pressing problems. As such, future litigation under the Constitution asks whether courts can resolve systemic disputes through a declaration of law.
Liberals are more likely to answer this question in the affirmative, arguing for an expansive doctrine of standing, while conservatives tend to support a restrictive standing analysis. See Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. Rev. 301, 324–30 (2002) (explaining how standing doctrine serves conservative interests by aiding white plaintiffs and wealthy plaintiffs, while harming black plaintiffs, indigent plaintiffs, and imprisoned plaintiffs). For example, Lujan illustrates how the Supreme Court required plaintiffs to show concrete plans to visit the endangered species, rather than just general interests in the species, while Bennett v. Spear allowed ranchers with conservatively aligned interests to sue under the Endangered Species Act for their economic injuries stemming from water rationing.
Lujan, 504 U.S. at 560–61; Bennett v. Spear, 520 U.S. 154 (1997). While standing is often a huge hurdle in impact litigation like Juliana, conservative cases have faced similar issues when trying to ban gay marriage or challenging the Affordable Care Act. See Hollingsworth v. Perry, 570 U.S. 693 (2013) (holding that proponents of California's Amendment 8, which overturned state legislation legalizing gay marriage, lacked standing to appeal); Peterson v. United States, 774 F.Supp. 2d 418, 423–25 (D.N.H. 2011) (holding that the plaintiff lacked standing because he could not be subjected to penalties under the Affordable Care Act’s insurance mandate).
Instances where more conservative plaintiffs struggled with standing illustrate that liberal and conservative plaintiffs ultimately have a shared interest in ensuring that their cases are heard on the merits, rather than on preliminary Article III issues. Thus, both liberals and conservatives should want Juliana’s central issue to be decided in a way that allows pressing constitutional controversies to be decided broadly. A decision that allows courts to provide comprehensive declarations of relief can thus serve the aims of both liberals and conservatives by setting precedent for Article III powers in conformance with the Founders’ foresight. A core constitutional duty of the federal judiciary is to protect citizens from government-inflicted harm. When the sole issue before a court is the redressability prong of standing, both liberals and conservatives should agree on the important role of the judiciary in applying constitutional law and declaring rights and the government’s responsibilities. No other branch of government can perform this function because the “judicial Power” is exclusively in the hands of Article III courts. Art. III, § 1. To deny any citizen standing in the face of the government’s insistence “that it has the absolute and unreviewable power to destroy the Nation,” Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020), portends a standing decision that no American should support.
