A Stable Climate is a Fundamental Right and a Massive Economic Opportunity

By Ed Jewell, Energy Fellow

Photo Credit: C-SPAN. James Inhofe talking nonsense.

Youth plaintiffs from Oregon have filed a lawsuit against the United States government in the District Court of Oregon alleging that the federal government’s failure to take meaningful action on climate change violates a fundamental right held by the plaintiffs that is protected by the U.S. Constitution. Last November, youth plaintiffs survived a motion to dismiss, and Juliana v. United States of America is now scheduled to go to trial in either late 2017 or in 2018 (barring any successful delay tactics on behalf of the federal government). 

For more background on the case, see this Charged Debate post from February 7, 2017 in which I provide an overview of the parties and the plaintiffs’ legal theories.

The plaintiffs in Juliana allege that the right to a stable climate is an unenumerated fundamental right protected by the U.S. Constitution. Because the federal government helped cause the danger created by an unstable climate, they allege that the government has an affirmative duty to restore the climate to a stable condition.

The Due Process Clause of the Fifth Amendment provides, “No person shall be . . . deprived of life, liberty, or property, without due process of law.” Plaintiffs in Juliana argue that the federal government has violated this Constitutional guarantee through the leasing, permitting, subsidizing, and promoting of fossil fuel development at home and abroad. The direct result of these activities is the combustion of fossil fuels, which inevitably results in the release of greenhouse gases. The accumulation of greenhouse gases in the atmosphere leads to an altered climate system with property, health, and livelihood impacts on plaintiffs. Therefore, the plaintiffs assert, the government’s direct actions have helped to create the harm imposed upon plaintiffs’ liberty and property interests without satisfying the requirements of due process.

An “unenumerated fundamental right” is a right that is not explicitly written in the Constitution but is nonetheless protected by the Constitution. In McDonald v. City of Chicago, the U.S. Supreme Court held that it is proper for the courts to recognize an unenumerated fundamental right if it is either: 1) deeply rooted in the history and tradition of the U.S., or 2) fundamental to our nation’s scheme of ordered liberty. Judge Aiken, the District Court of Oregon judge hearing Juliana, wrote, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

The right to privacy is an example of another unenumerated fundamental right protected by the Constitution, under which numerous more specific rights are protected. The U.S. Supreme Court rested its decisions in Roe v. Wade (articulating a woman’s right to choose whether or not to have an abortion), as well as its decision in Griswold v. Connecticut (upholding the right to purchase contraception regardless of marital status), and its recent decision in Obergefell v. Hodges (articulating the right to marry the person of one’s choosing, even if that person is of the same sex) under the right to privacy. While the right to choose, the right to purchase contraception, and the right to same-sex marriage are not explicitly protected by the Constitution, they are all protected under the umbrella of an unenumerated right to privacy.

The proper relationship between the judiciary and the political branches is a key theme in Juliana. On the one hand, it is the judiciary’s duty to interpret and declare the law. On the other hand, the Constitution allocates policymaking authority to the political branches. Because the courts do not write laws, judges exercise caution before pronouncing an unenumerated fundamental right. However, certain terms in the Constitution, such as the word “liberty” in the Due Process Clause, are undeniably vague and require interpretation by the courts. As the Court recently stated in Obergefell v. Hodges, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Thus, Juliana hinges on the question of whether the government’s failure to take meaningful action on climate change has crossed the threshold from mere policy decision to constitutional violation.

Judge Aiken was careful to limit her holding in her Order on defendants’ motion to dismiss to recognizing that a “climate system capable of sustaining human life” is a fundamental right. In so limiting her holding, Judge Aiken took care to ensure that the judiciary is properly fulfilling its Constitutionally prescribed role as a check on the political branches, but is not straying into policymaking. Judge Aiken did not state that there is a Constitutional right to a climate system as it existed before the industrial revolution, or to a pristine environment totally devoid of human impact. To make such a declaration would be to make a policy determination that environmental purity is more important than other policy objectives. Instead, Judge Aiken held, “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.” Seems fair.

If plaintiffs ultimately succeed on their claim that there is a fundamental right to a stable climate capable of sustaining human life, the judiciary’s authority to constrain and direct the actions of the executive and legislative branches will be tested to its full extent. Additionally, the judicial system’s ability to act expeditiously and require remedial action of the political branches on a timeframe that is meaningful in relation to the scientific imperatives of quick and decisive action on climate change is uncertain. Without all three branches of government pulling together in the same direction, the U.S. Constitutional system favors maintenance of the status quo over quick and decisive action.

Juliana is an important and interesting case that is pushing the conversation on climate change and potentially reframing the issue from one of partisan bickering to one of Constitutional proportions, but climate change mitigation will require the political branches to cooperate. While Juliana seeks to compel the judiciary to hold the political branches to account, this alone is not enough.

The viability and benefits of a transition to a clean energy economy must be broadly recognized in order for climate change to be mitigated in a meaningful manner. On an optimistic note, solar energy already provides more jobs than the coal, oil, and gas industries combined. Additionally, because of the disbursed nature of renewable resources, renewable energy development has inherent potential to benefit landowners in rural districts, potentially providing more disbursed vested interests and greater overall political viability than a moral call to action on climate change.

Juliana is a powerful component of the transition to a sustainable economy because it brings to light the regrettable reluctance of the political branches to fulfill their obligations to the American people to maintain the conditions necessary for ordered liberty to prevail. Juliana alone, however, is not sufficient to achieve a stable climate system. To successfully mitigate climate change, more people must experience the economic benefits of renewable energy, political pressure must be increased, technological development must continue, state and local governments must fill the void in the absence of federal leadership, and private companies must lead the way until sense returns to the political branches.