In September 2015, Oregon teen Kelsey Juliana, 20 other children, former NASA scientist James Hansen, and environmental organization Earth Guardians sued the U.S. government in the Eugene, Oregon federal district court. The suit contends that the government’s longstanding support for fossil fuel industries causes catastrophic climate change and, thus violates the youngsters’ constitutional rights to life, liberty, and property.
To redress the alleged injuries, the suit requested that the district court order the White House and other executive agencies “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”
During 2016-2019, the Obama and Trump administrations tried and failed to persuade the district court, the Ninth Circuit, and the Supreme Court to dismiss or stay the case. However, on January 17, 2020, a three-judge panel of the Ninth Circuit Court of Appeals ruled that plaintiffs lack standing to sue. The panel did not dispute plaintiffs’ argument that U.S. energy policies infringe their constitutional rights by contributing to catastrophic climate change. However, to have standing, plaintiffs must not only show “concrete and particularized injuries” that are “fairly traceable to the conduct of the defendant.” They must also show that their requested relief would redress those injuries and is within the court’s power to grant.
The panel found that the proposed remedy—a U.S. government-wide plan to decarbonize the U.S. economy—would not “ameliorate” any climate-related harms plaintiffs purport to have sustained. It also ruled that the national decarbonization program envisioned by plaintiffs is beyond the power of any Article III court to “order, design, supervise, or implement.”
Putting it in my own words, the Kids and their guardians seek to pull off the ultimate climate coup. They are attempting to bypass the legislative process and impose by judicial fiat an extreme version of a controversial agenda. In classic Orwellian fashion, plaintiffs invoke their “constitutional rights” on behalf of a plan that would destroy the constitutional separation of powers.
On March 2, the Kids’ attorneys requested an en banc (full court) rehearing of the panel’s decision. DOJ’s March 24 brief argues that the Ninth Circuit panel “properly applied the law and arrived at the correct result.” Consequently, the case “does not merit” an en banc review.
The panel, in my opinion, needlessly swallowed the Kids’ catastrophe narrative hook, line, and sinker. Although climate change is a fact, the “climate crisis” is an artifact of overheated models, inflated emission scenarios, unmerited pessimism about human adaptive capabilities, unscientific denialism regarding the agroecological benefits of atmospheric carbon dioxide enrichment, and partisan hyperbole. The judges would do well to spend some time with Climate Change Reconsidered II: Fossil Fuels, a 782-page review of peer-reviewed climate science and economics unknown to the Kids and ignored by their guardians.
Equally disappointing, the panel seems unaware that the regulations, mandates, carbon taxes, and other market-rigging interventions designed to suppress fossil energy development also endanger constitutional rights.
As summarized by Oregon district court Judge Thomas Coffin, the Kids allege that rising CO2 concentrations:
- Infringe their constitutionally protected rights to life, liberty, and the pursuit of happiness;
- Violate equal protection rights embedded in the Fifth Amendment by “denying them protections afforded to previous generations:”
- Violate an implicit Ninth Amendment right to “a stable climate and an open ocean and atmosphere:” and
- Violate the public trust doctrine “by denying future generations essential natural resources.”
The Kids’ agenda, whether enacted the old-fashioned way or imposed by judicial fiat, would make energy scarcer, more costly, and less reliable. Without abundant, affordable, reliable energy, human life is nasty, poor, brutal, and short. The Kids have no idea how much their own safety, security, and pursuit of happiness depend on an energy rich society. The judges would not have been remiss to point that out.
Similarly, the requested climate policies would violate equal protection rights by denying to future generations the economic opportunities and affordable energy plaintiffs take for granted; violate an implicit Ninth Amendment right to enjoy the great cycle of progress initiated and still sustained by fossil fuels; and violate the public trust doctrine by denying to future generations access to essential natural resources, notably coal, gas, and oil, which supply roughly 80 percent of U.S. commercial energy.
A Good Ruling Nonetheless
Notwithstanding the blind spots in the panel’s March 17 ruling, if the Ninth Circuit lets the decision stand, I will be among the first to pop the champagne bottles (and I don’t even imbibe).
Whatever the outcome, the panel’s argument that the Kids’ Climate Suit fails for lack of standing is powerful. Key excerpts follow.
To establish Article III redressability, the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award. ...
The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. ...
The plaintiffs’ experts opine that the federal government’s leases and subsidies have contributed to global carbon emissions. But they do not show that even the total elimination of the challenged programs would halt the growth of carbon dioxide levels in the atmosphere, let alone decrease that growth. Nor does any expert contend that elimination of the challenged pro-carbon fuels programs would by itself prevent further injury to the plaintiffs. Rather, the record shows that many of the emissions causing climate change happened decades ago or come from foreign and non-governmental sources.
Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.
Another expert has opined that although the required emissions reductions are “technically feasible,” they can be achieved only through a comprehensive plan for “nearly complete decarbonization” that includes both an “unprecedently rapid build out” of renewable energy and a “sustained commitment to infrastructure transformation over decades.” And, that commitment, another expert emphasizes, must include everything from energy efficient lighting to improved public transportation to hydrogen-powered aircraft.
We are therefore skeptical that the first redressability prong is satisfied. But even assuming that it is, the plaintiffs do not surmount the remaining hurdle—establishing that the specific relief they seek is within the power of an Article III court. There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.
These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of “competing social, political, and economic forces,” which must be made by the People’s “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.”
The plaintiffs argue that the district court need not itself make policy decisions, because if their general request for a remedial plan is granted, the political branches can decide what policies will best “phase out fossil fuel emissions and draw down excess atmospheric CO2.” . . . .
But, even under such a scenario, the plaintiffs’ request for a remedial plan would subsequently require the judiciary to pass judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policymaking. And inevitably, this kind of plan will demand action not only by the Executive, but also by Congress. Absent court intervention, the political branches might conclude—however inappropriately in the plaintiffs’ view—that economic or defense considerations called for continuation of the very programs challenged in this suit, or a less robust approach to addressing climate change than the plaintiffs believe is necessary. “But we cannot substitute our own assessment for the Executive’s [or Legislature’s] predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’” ... And, given the complexity and long-lasting nature of global climate change, the court would be required to supervise the government’s compliance with any suggested plan for many decades. ...
The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. ...
We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.