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.

The U.S. Constitution, the Public Trust Doctrine, and the Right to a Stable Climate

By Ed Jewell, Energy Fellow

Image Credit: Our Children's Trust

Amid an onslaught of foreboding news for U.S. democracy, human and civil rights, and the environment, a small beacon of hope shines out of the District Court of Oregon. On November 10, 2016, plaintiffs in the case of Juliana v. United States won another important, if preliminary, battle in the fight to maintain an atmosphere capable of sustaining the ecological systems of the planet. Plaintiffs survived a motion to dismiss, and the case is scheduled to go to trial in summer or early fall 2017.

Throughout the coming weeks, I will discuss in greater detail the arguments put forth by the plaintiffs and provide analyses on the legal merits of their claims. For now, I would like to simply introduce the parties, provide a brief description of the claims at issue, and alert readers to the possibility that not everything is going poorly. 

The Parties

Plaintiffs in the case are a group of youths and environmentally-focused youth organizations. Dr. James Hansen, former Director of the NASA Goddard Institute for Space Studies, is also a named plaintiff as guardian for his granddaughter and future generations. Plaintiffs are represented by lawyers affiliated with the nonprofit organization Our Children’s Trust. Our Children’s Trust has filed numerous lawsuits in state courts across the U.S. and internationally alleging a right to a stable climate under various legal theories, including state constitutional claims, administrative law claims, federal constitutional claims, and the public trust doctrine.

Defendants in Juliana are the President of the United States and numerous federal agencies, namely the Environmental Protection Agency, the Department of Energy, the Department of the Interior, the Department of Transportation, the Department of Agriculture, the Department of Commerce, the Department of Defense, the Department of State, the Council on Environmental Quality, the Office of Management and Budget, and the Office of Science and Technology Policy. The American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers have also intervened in the suit on behalf of the government.

The Legal Theories 

Plaintiffs allege that the U.S. government has known for over fifty years that extreme CO₂ pollution caused by the burning of fossil fuels is likely to destabilize the global atmosphere and that the federal government has nonetheless continued to allow and encourage the exploitation of fossil fuels. Plaintiffs allege that defendants have willfully ignored the impending harm of climate change and have substantially caused or contributed to the increase in atmospheric CO₂ through the permitting, authorizing, and subsidizing of fossil fuel extraction and consumption.

Plaintiffs assert four legal causes of action in Juliana, three of which are constitutional, and one of which is pre-constitutional. The first argument is that the U.S. government has violated the Due Process Clause of the Fifth Amendment by authorizing, permitting, and subsidizing the extraction, consumption, and export of fossil fuels, which contributes to the destabilization of the global climate. Plaintiffs allege that the right to a stable climate is protected by substantive Due Process jurisprudence because a stable climate is implicit in the concept of ordered liberty.

Related to the claim of an unenumerated fundamental right under the Due Process clause, plaintiffs assert a violation of the Ninth Amendment. The Ninth Amendment states that the enumeration of specific rights "shall not be construed to deny or disparage others retained by the people." Thus, plaintiffs argue that even though the right to a stable climate does not appear in the text of the Constitution, case law establishing a substantive Due Process cause of action against the federal government under the Fifth Amendment, and the text of the Ninth Amendment, do not foreclose courts from recognizing a stable climate as a fundamental right protected by the Constitution. 

Plaintiffs’ third constitutional argument alleges that defendants have violated the principle of equal protection. Under this claim, plaintiffs assert that the youth petitioners and future generations are a protected class of people that need extraordinary protection from the political process due to an immutable characteristic. The immutable characteristic asserted is not merely their age, but the fact that an entire generation (and many more after that) will not be able to reverse the damage of climate change caused by present decision makers. The claim for protection for posterity is based on the Founders’ concern for intergenerational equity, as illustrated by the preamble to the Constitution, which announces the intention of the document to, in part, “secure the Blessings of Liberty to ourselves and Posterity”. 

Petitioners' fourth legal claim is based on the Public Trust Doctrine. The Public Trust Doctrine is an ancient common law doctrine that has been incorporated into U.S. jurisprudence through a long string of judicial decisions dating back centuries. The doctrine can be traced from Roman law to English common law to American common law. The Public Trust Doctrine requires the government to prevent "substantial impairment" of vital natural resources for the benefit of present and future generations. In Juliana, plaintiffs must convince the court that the Public Trust Doctrine applies to the federal government, and not just state governments. Additionally, plaintiffs must convince the court that the Public Trust Doctrine protects the atmosphere, or alternatively, that damage to sea shores from ocean level rise and ocean acidification is a cognizable claim under the Public Trust Doctrine. 

Juliana raises numerous other legal questions that courts have struggled to deal with in the context of climate change. Specifically, issues of standing (the right of plaintiffs to be in court), the political question doctrine (the ability of the court to decide the issue within the tripartite form of U.S. government), displacement (whether federal statutes such as the Clean Air Act swallow common law causes of action in the field of climate change), and remedy (what the court could order defendants to do if it found for plaintiffs) are all very much live issues in Juliana. 

In addition to the fascinating legal theories, the stark juxtaposition of the identities of parties, and the fierce urgency of acting on climate change, there is yet a bit more intrigue. Plaintiffs seek to depose Rex Tillerson, recently confirmed as the U.S. Secretary of State, in order to ascertain information relating to the relationship between the U.S. government and private fossil fuel companies. Attorneys for Intervenors and Defendants have both opposed the deposition of Mr. Tillerson. 

The role of the judiciary in the U.S. constitutional system is an intriguing theme in the uncertain political times that we find ourselves in. With an executive branch and a legislative branch living in a universe of alternative fact, it may fall on the courts to protect both our democratic and ecologic systems. Juliana going to trial means that climate science and climate policy will be aired out in public and judged within a framework of vetted facts applied to concepts of fundamental rights and fiduciary duties rather than merely within the realm of fake news and echo chambers. Such a prospect is highly encouraging in the current social, political, and ecological context and is very important for the development of the law in relation to climate change as well .

If you’re looking for something to be hopeful about, follow along over the coming weeks as I explore the legal theories that animate this case.