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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Jane Borthwick Story
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions