January 16, 2018

Can Our Children Trust Us with Their Future? Juliana is a reminder that the government’s purpose is to be a guardian for future generations

Rick Reibstein

The 2016 ruling in Kelsey Cascadia Rose Juliana v. USA is one of the greatest recent events in our system of law. (See Opinion and Order, Case No. 6:15-cv-01517-TC, US District Court for Oregon, Eugene Division. Anne Aiken, Judge, filed 11/10/16.) A group of children between the ages of eight and nineteen filed suit against the federal government, asking the court to order the government to act on climate change, asserting harm from carbon emissions. The federal government’s motion to dismiss was denied. Although I am not involved in the case, I am a lifelong environmentalist, and I teach environmental law (to non-law students). This case is a shining example of what law can be. This case gives me hope that we will not continue to cooperate in our own destruction, and future generations will be able to rely on us to uphold the spirit of the law and purpose behind government.

General Welfare

What does it mean that in the introduction to the US Constitution the authors stated that their purpose in forming a government was to promote the General Welfare? This means we cannot turn away—and we must not allow our government to turn away—when a key common resource is being destroyed. It is not ok to do nothing about the instability of the planet’s temperature or rising acidity or height of the oceans, particularly when our actions are causing these immense problems.

The plaintiffs—who, along with the children, include an association of environmental activists called the Earth Guardians and Dr. James Hansen, recognized by the court as “acting as guardian for future generations”—point out that even though the federal government has long known about how greenhouse gases were causing terrible problems, it has “continued to permit, authorize, and subsidize fossil fuel extraction, development, consumption and exportation—activities producing enormous quantities of CO2 emissions that have substantially caused or substantially contributed to the increase in the atmospheric concentration of CO2.” The plaintiffs asserted in their first amended complaint (9/10/15), that “[t]hrough its policies and practices, the Federal Government bears a higher degree of responsibility than any other individual, entity, or country for exposing Plaintiffs to the present dangerous atmospheric CO2 concentration.” It is not just through inaction, but through actions, that we have allowed the destabilization of life systems on Earth.

Indeed, it is our government that should be acting as guardian for the rights and general welfare of future generations, and it is we, the citizens, who should be ensuring that the government does fulfill that function. So far, the plaintiffs have survived motions to dismiss the case, and if the outcome of this case is that the court does issue the order (i.e., that a plan to reduce CO2 emissions be developed), then the court will be doing what the people of this country have failed to do. Long ago we should have told our legislators and our executives to take actions in furtherance of initiatives that promote the interests of our children and our future. We shouldn’t rely on courts to do this for us. However, in instances where we don’t act and the courts do, we must be grateful for the third branch.

Responsibility to Humanity

The plaintiffs in this case are asking the court to order the government to take responsibility for the actions of today, and the impacts they have on the future. The original idea behind the United States was to come together for the greater good—first in combination to declare independence, then to confederate, and finally to unite as one nation. In Federalist 37, Madison pointed out that there is no unitary theory in the US Constitution—it’s a kind of mish mosh. No one ideological approach or structure won out, but rather the Constitution represents a series of balances between many views. So why did people agree to it? It was due to a “deep conviction” of “sacrificing private opinions and partial interest to the public good.” (See Mary Sarah Bilder’s Madison’s Hand.) That is why this Juliana case is so important. It provides us with a concrete example of responsibility to the whole of humanity—to all living things. We first need to recognize and then affirm that concept.

Retaining Trust

The Juliana case also articulates a “trust” responsibility to act to protect the environment, a concept set forth decades ago by Professor Joseph Sax, an icon of environmental law, and more recently by Mary Cristina Wood of the University of Oregon and the author of the 2013 Nature’s Trust. Wood applied the concept in what she calls Atmospheric Trust Litigation, which is now a legal movement to hold governments accountable for reducing carbon pollution. You may recall learning in law school about a case in which the government was said to have a trust responsibility, which allowed a court to void the giveaway of the shoreline of Lake Michigan to railroads.

Note that we don’t seem to have similar case precedent for arguing that the federal government must act to protect the air. Is that important? Does it matter if there was never a case before wherein a court explicitly found that agencies must act to protect a natural resource, such as air, as a “trust” responsibility? Maybe it didn’t need to be said.

But a judge who seems to step out too far can be castigated and overruled. There will be much discussion of the separation of powers. But what about when the legislature fails to act, and has failed to act for years, and there is a public emergency? Must the court sit on its hands as well, joining in the abdication of responsibility? Must plaintiffs be left without any remedy? It is, as Chief Justice John Marshall said, the role of the court to say what the law is.

The Purpose of Courts and the Law

In a monarchy, law is the tool of the king, but in a democracy, the people are sovereign. If the law is not serving the people’s interests, it is not working as it should, and it is the role of the courts to do something about it.

What the courts do is another question entirely. In Juliana, the plaintiffs ask for: “(1) a declaration their constitutional and public trust rights have been violated and (2) an order enjoining defendants from violating those rights and directing defendants to develop a plan to reduce CO2 emissions.” Perhaps you are remembering the early cases on whether state or federal constitutions provided for rights to a clean environment—judges were reluctant in those cases to decide those questions. Some quoted Judge Learned Hand who said that it was not “desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” Well, the concept of the crucial importance of ecosystem viability has been gestating for long enough. It is time for this doctrine to be born.

In addition, in the early environmental rights cases, judges wanted to see some movement from legislatures and the Supreme Court, and now they have. In Massachusetts v. EPA, for example, the Supreme Court said the EPA could not just turn away from the job of addressing greenhouse gases. The Court didn’t tell the EPA what it had to do, but it said it was arbitrary and capricious to just shrug off the problem. That’s clear precedent that action is necessary. The EPA was acting—its Clean Power Plan was one example, but the stopping of the system now brings back before the judicial branch the basic question of whether we can continue to deny the necessity of environmental protection as essential to just governance.

Judge Aiken in Juliana found that while the case raised political issues, it was not barred by the political question doctrine, and though the court would “be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy,” it was squarely within its powers to begin the process of doing so. Concerning standing, the court found the plaintiff’s allegations to constitute injury in fact:

Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she drinks, and low water levels caused by drought kill the wild salmon she eats. Plaintiff Xiuhtezcatl Roske-Martinez alleges increased wildfires and extreme flooding jeopardize his personal safety. Plaintiff Alexander Loznak alleges record setting temperatures harm the health of the hazelnut orchard on his family farm, an important source of both revenue and food for him and his family. Plaintiff Jacob Lebel alleges drought conditions required his family to install an irrigation system at their farm.

Page 19, Opinion and Order.

These injuries were considered by the court not to be nonjusticiable “generalized grievances” (note that “the most recent Supreme Court precedent appears to have rejected the notion that injury to all is injury to none for standing purposes.” See e.g., Pye v. United States, 269 F.3d 459, 469 (4th Cir. 2001)).

The plaintiffs alleged that “our country is now in a period of carbon overshoot, with early consequences that are already threatening and that will, in the short term, rise to unbearable unless Defendants take immediate action.” The harm is imminent.

Judge Aiken also accepted that the plaintiffs had sufficiently alleged that their harm was traceable to the actions of the defendants—and she stated she was bound to accept this “at this stage” in the case, for it is beyond the court’s expertise to know that it would be “impossible to introduce evidence to support a well-pleaded causal connection.” (Page 23, Opinion and Order.) Hopefully other judges called upon to consider this case will not only understand that “between 1751 and 2014, the United States produced more than twenty-five percent of global CO2 emissions” but also the consequences of this production, and that there is causation from the actions of the defendants. These actions include: leasing public lands for oil, gas, and coal production; undercharging royalties relating to those leases; providing tax breaks to companies to encourage fossil fuel development; permitting the import and export of fossil fuels; and incentivizing the purchase of sport utility vehicles. There may be a legal standard of proof that makes it difficult to obtain court action, but that does not mean the causation and the responsibility are not plain to see.

Value in the Notion that Action Is Necessary

In a discussion of whether the rights infringed upon are fundamental, the judge in Juliana quoted Justice Kennedy, writing in the equal marriage case (Obergefell):

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights . . . did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

“Exercising my ‘reasoned judgment,’” Judge Aiken wrote in Juliana, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” She then discussed how this need not open the door too widely, to admit any kind of claim of environmental harm.

While the ideas governing Judge Aiken’s reasoning behind denying the defendant’s motion to dismiss the case represent wealth beyond compare for a civilized society that wishes to be comprised of responsible adults, it is in the discussion of public trust that the case emits a bright light. Judge Aiken begins this discussion by pointing out that “[i]n its broadest sense, the term ‘public trust’ refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers.” She notes that this goes back to ancient Roman law, quoting the Institutes of Justinian: “the following things are by natural law common to all—the air, running water, the sea, and consequently the seashore.” In discussing Illinois Central RR v. Illinois, the famous case concerning the shoreline, she noted the general principle that “the state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them . . . than it can abdicate its police powers in the administration of government and the preservation of the peace.” She quotes Mary Wood’s book for the principle that “[t]he government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust.”

Such principles diminish the defendants’ argument that the atmosphere is not a public trust, and the public trust doctrine is limited to lands beneath tidal waters. But just in case, Judge Aiken also pointed out the connection between climate change and impacts on the sea. We know from the modern science of ecology that all things are connected, and our laws must reflect this.

The very air and the stability of the climate, the viability of the ocean to support life, these are trust assets that are the common property of the people. Judge Aiken found this responsibility applies to the federal government and is not displaced by the Clean Air Act: “Public trust claims are unique because they concern inherent attributes of sovereignty. The public trust imposes on the government an obligation to protect the rest of the trust. A defining feature of that obligation is that it cannot be legislated away. Because of the nature of public trust claims, a displacement analysis simply does not apply.” The public trust claims of the plaintiffs both “predate the Constitution and are secured by it.” The plaintiffs’ natural rights are recognized by the Ninth Amendment, and they have a cause of action because of the substantive due process clause of the Fifth Amendment.

The legal standards raised and relied on in Juliana thus far are born of common sense. Thank you, plaintiffs, for engaging with our democratic system and reminding us of the purpose of government: to protect our future.

Rick Reibstein

Rick Reibstein is a lecturer on environmental law and policy at Boston University and Harvard extension and summer school.