By Sarah Brunswick.
Climatechange has had a rough few years. Last year, California saw a historic fire season, and Arizona had its hottest summer on record. Texas was recently devastated by an extreme winter storm that left millions without power or running water, and the aftermath quickly turned political.
Rewinding a few years, disdain for climate change was a hallmark of Donald Trump’s presidential campaign. He proudly exited the Paris Agreement early in his presidency, pushed for fossil fuel development across the country, and opened federal lands for oil leases. Responding to Trump’s actions and growing concerns about climate change, House members introduced a sweeping climate change bill in early 2019, dubbed the Green New Deal.
Then-President Trump was openly hostile to the plan, and now-President Biden was a vocal skeptic during primary debates. Later, Trump attacked Biden for his plan to ban fracking, to which Biden responded by insisting he had no such plan. Still, Biden rejoined the Paris Agreement on day one of his presidency and continues to move forward with climate policy.
It’s almost hard to believe that Juliana v. United States, the “kids climate case,” started before all of that. It’s less surprising that the case has endured through today. Juliana began in 2015, when twenty-one youths and the organization Earth Guardians filed a complaint in Oregon’s federal court. The plaintiffs allege that the country’s failure to meaningfully confront climate change violates their constitutional rights. In particular, the suit argues that the United States’ continued reliance on fossil fuels adversely—and disparately—affects children and future generations.
Juliana is novel for both its parties and claims. Juliana involves, literally, a bunch of kids suing the federal government. “Normal” climate change suits have largely targeted private fossil fuel companies instead. Thus, the case rests on constitutional arguments—on notions of liberty and justice—rather than common law nuisance or negligence claims.
The first two claims draw on the Constitution’s Fifth Amendment. The first claim—due process—is that the United States’ “historic and continuing permitting, authorizing, and subsidizing of fossil fuel extraction, production, transportation, and utilization . . . endanger [Plaintiffs’] lives, liberties, and property.” The second claim—equal protection—is that these “aggregate acts . . . irreversibly discriminate[d] against” Plaintiffs and denied them “the same protection of fundamental rights afforded to prior and present generations of adult citizens.” The complaint argued that “children and future generations” are an “insular minority” with no voting rights or political capital and thus could only turn to the judicial system.
The third claim is a generalized argument for an “implied right to a stable climate system” under the Ninth Amendment. Plaintiffs’ last claim rests on the public trust doctrine, which recognizes natural resources as held in trust by the government (state or federal) for the public benefit. The Juliana plaintiffs argue that the United States, in its support of and dependence on fossil fuels, has violated its trust duty.
As relief, plaintiffs seek sweeping declaratory and injunctive relief, ranging from requiring the United States “to prepare a consumption-based inventory of U.S. CO2 emissions” to declaring portions of the Energy Policy Act unconstitutional.
Death by a Thousand Petitions for Writ
Since its filing, Juliana has traveledup and down the courts. It’s been before the Ninth Circuit four times and the Supreme Court twice. Countless amici have submitted briefs to both courts. And yet, trial has not started. The early years saw the federal government take several losses, while more recently Plaintiffs have taken blows from the Ninth Circuit.
In late 2016, U.S. District Court Judge Aiken denied dual motions to dismiss from the federal government and fossil fuel companies. This began a cycle of various courts rejecting the government’s efforts to stop or delay the case. For example, an ultimately unsuccessful petition for writ of mandamus before the Ninth Circuit delayed trial from February to October 29, 2018. The United States then motioned for a protective order and stay of discovery; this too was rejected.
The government sought a second writ of mandamus in July 2018. Once again, the Ninth Circuit rejected the petition. This was soon overshadowed by a Supreme Court ruling—the October 2018 trial date was still on, despite the government’s efforts to stay the trial. Significantly, the Supreme Court also rejected a request to review the case before trial, calling the request “premature.”
Weeks before trial, the government filed a third petition for writ of mandamus with the Ninth Circuit and a smattering of motions before Judge Aiken. Here, the tides shifted slightly, with Judge Aiken narrowing the scope of the case and dismissing then-President Trump as a party. With this boost of momentum, the federal government went back to the Supreme Court. The Supreme Court ordered a temporary administrative stay and required briefing from the plaintiffs—another (small) win for the government.
October 29, 2018, came, and no trial started. A few days later, though, the Supreme Court once again denied the government’s effort to stop the trial. Not one to give up, the federal government turned right back to Judge Aiken and the Ninth Circuit, filing more motions and a fourth petition for writ. This time, the Ninth Circuit stayed the trial, although trial preparation was to continue, and Judge Aiken certified the case for an interlocutory appeal. In late December, the plaintiffs asked the Ninth Circuit to let the case go to trial. They responded by fast-tracking the appeal.
In February 2019—now a year past the original trial date—the plaintiffs sought a preliminary injunction from the Ninth Circuit, asking them to halt permit and project approvals relating to fossil fuels. The Ninth Circuit set oral arguments for June 2019 and issued a decision in January 2020: while sympathetic to the realities of climate change, two of the three judges felt that the courts were not the proper venue for solving this problem. The remaining judge, Josephine Stanton, wrote a “fiery dissent,”arguing that the majority acquiesced to the government’s frank insistence “that it has the absolute and unreviewable power to destroy the Nation.” In March 2020, the plaintiffs sought an en banc review of the decision by the entire Ninth Circuit. Almost a year later—just weeks ago—the Ninth Circuit declined en banc review, upholding the adverse ruling.
Next up, SCOTUS?
As it stands, climate change is real, but policy changes need to originate with the executive or legislature; the Ninth Circuit is not apt to intervene. While some might see the issue as moot under the Biden administration, Juliana still begs the question of whether separation of powers is a necessary roadblock to judicial activism or a fiction used to obstruct justice.
The Juliana plaintiffs have communicated that they will appeal the ruling to the Supreme Court, although they are open to settlement discussions with the Biden administration. They face a major hurdle: a conservative Supreme Court. Even last year, before Ruth Bader Ginsburg’s passing, legal experts were worried that the Supreme Court might narrow standing if it heard this case, at the cost of future climate cases. Today’s Court is overwhelmingly conservative. Ironically, the Juliana plaintiffs may have the best chance at success outside the courts.