United States: Oregon Federal Judge Adopts Recommendation To Deny Motions To Dismiss Children's Lawsuit On Climate Change

Last Updated: February 21 2017
Article by Jane Borthwick Story and Nicholas M. Faas

 As described more fully in the Spring 2016 issue of The Climate Report, in April 2016, a federal magistrate judge in Oregon denied motions to dismiss a lawsuit filed against the federal government by a group of plaintiffs ranging between ages 8 and 19 seeking relief from government action and inaction that allegedly results in carbon pollution of the atmosphere, climate destabilization, and ocean acidification. Juliana v. United States, No. 6:15-cv-01517 (D. Or.). On November 10, 2016, U.S. District Judge Ann Aiken adopted the magistrate judge's recommendation to deny the motions to dismiss the lawsuit.

The plaintiffs argue that the federal government has known for more than 50 years that carbon dioxide ("CO2") produced by burning fossil fuels was destabilizing the climate system and that despite this knowledge, the defendants "permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels." The plaintiffs allege violations of their constitutional rights (including their substantive due process rights to life, liberty, and property) and the public trust doctrine. The plaintiffs seek a declaration that their constitutional and public trust rights have been violated and an order enjoining defendants from violating those rights and directing defendants to prepare and implement a plan to reduce CO 2 emissions. The defendants moved to dismiss the action, arguing that the plaintiffs improperly ask the court to rule on political issues, lack standing, and do not raise any constitutional claims. The court addressed each of the issues in turn. 

Political Question. Judge Aiken determined that the plaintiffs' case does not present a political question. She reviewed six criteria that could each signal the presence of a political question, concluding that none suggested the "need to step outside the core role of the judiciary to decide this case." She added, "[a]t its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs' constitutional rights. That question is squarely within the purview of the judiciary." Finally, she noted that although "separation of powers" might become problematic should the plaintiffs prevail, speculation about crafting a proper remedy could not support dismissal "at this early stage." 

Standing. Next, Judge Aiken found that the plaintiffs have standing. First, she found that the plaintiffs adequately allege injury in fact, as various plaintiffs allege specific examples of their injuries (e.g., increased wildfires and extreme flooding jeopardizing personal safety). She held that the alleged injuries are concrete and particularized, as opposed to generalized grievances. She also found the alleged injuries to be imminent—harm that is "ongoing and likely to continue in the future." Second, Judge Aiken found that the causation element of standing was satisfied primarily for two reasons: (i) she was bound to accept the plaintiffs' allegations of a causal relationship between their injuries and the defendants' conduct as true at the motion to dismiss stage; and (ii) the emissions at issue in this case make up a significant share of global emissions, and the plaintiffs' chain of causation allegations are not vague. Finally, Judge Aiken held that the plaintiffs' requested relief would redress their injuries if they can show, as alleged, "that defendants have control over a quarter of the planet's greenhouse gas emissions, and that a reduction in those emissions would reduce atmospheric CO 2 and slow climate change[.]" 

Constitutional Claims. Having found that the plaintiffs' suit survived threshold political-question and standing issues, Judge Aiken moved onto plaintiffs' due process and public trust claims. 

Due Process. The defendants challenged the due process claim on two grounds: (i) they asserted that any challenge to their affirmative actions could not proceed because the plaintiffs "failed to identify infringement of a fundamental right or discrimination against a suspect class of persons"; and (ii) the plaintiffs could not challenge the defendants' inaction because they "have no affirmative duty to protect plaintiffs from climate change." As to the first challenge, Judge Aiken exercised her "reasonable judgment" and held that "the right to a climate system capable of sustaining human life is fundamental to a free and ordered society." By doing so, she stated that she "intend[s] to strike a balance and to provide some protection against the constitutionalization of all environmental claims." On one hand, she said, "the phrase 'capable of sustaining human life' should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species." On the other, she said, "acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation." She clarified her statements by holding 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." 

As to the defendants' second challenge, Judge Aiken noted that the Due Process Clause normally does not impose on the government an affirmative obligation to act, but that there is a "danger creation" exception to this general rule, which "permits a substantive due process claim when government conduct 'places a person in peril in deliberate indifference to their safety.'" She held that the plaintiffs satisfied the criteria for this claim by showing that: (i) the defendants' acts created the danger to the plaintiffs; (ii) the defendants knew their acts caused that danger; and (iii) the defendants, with deliberate indifference, failed to act to prevent the alleged harm. Judge Aiken noted that these stringent standards "are sufficient safeguards against the flood of litigation concerns raised by defendants" and posed "a significant challenge" for the plaintiffs; however, she reiterated that at the motion to dismiss stage, she was bound to accept the factual allegations in the complaint as true. 

Public Trust. Judge Aiken summarized the public trust doctrine as "the fundamental understanding that no government can legitimately abdicate its core sovereign powers." According to Judge Aiken, "Plaintiffs' public trust claims arise from the particular application of the public trust doctrine to essential natural resources. With respect to these core resources, the sovereign's public trust obligations prevent it from 'depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.'" Judge Aiken said that the government, as natural resources 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." Judge Aiken did not take a position on whether the atmosphere is a public trust asset, finding such a determination unnecessary because the plaintiffs have alleged violations in connection with the territorial sea, which already has been determined by the U.S. Supreme Court to be a public trust asset. 

Continuing, she said that the public trust doctrine is generally thought to impose three types of restrictions on governmental authority: "[F]irst, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses." 

In spite of the limitations and challenges to the plaintiffs' case noted by Judge Aiken, if this decision stands, it is likely to embolden other plaintiffs to bring environmental claims based on the same or similar theories in the future. Therefore, the decision almost certainly will be appealed (the timing of which, however, could be years down the road), particularly because the Trump Administration, which has vowed to rescind major climate change regulations enacted by the Obama Administration, is likely to continue vigorously defending against these claims.

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