On January 17, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held in Juliana v. United States that a coalition of young people lacked standing to require the federal government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” The panel majority concluded there was sufficient evidence that (1) climate change had caused measurable harm to at least some specific plaintiffs, who had been driven from their homes, and (2) the federal government’s policies have been a “substantial factor” in causing that harm. However, the panel majority “reluctantly” concluded that it lacked the constitutional authority to order the government to develop a plan to combat climate change. U.S. District Judge Josephine Staton, sitting by designation, dissented on the grounds that the courts have the authority to order the government to act if doing so will at least slow down climate change’s effects. The majority’s ruling poses a substantial roadblock for climate-change suits by private litigants who seek affirmative action by the government, although it appears to leave open the possibility that the result might be different with a different plaintiff or different kind of requested relief.
Plaintiffs—a class of 21 young people, an environmental activist association and a single individual acting as a guardian for future generations—filed suit against the United States, urging that the government’s policies and inaction on climate change violated inter alia their constitutional rights to substantive due process and equal protection. As part of this argument, they contended that the Constitution guarantees a right to a “climate system capable of sustaining human life.” As their primary relief, plaintiffs requested an injunction requiring the federal government to implement a plan to phase out fossil fuel emissions and reduce excess atmospheric carbon dioxide.
After the suit was filed, the government moved to dismiss it for, among other things, lack of standing. When the district court denied the motion, the government asked the Ninth Circuit to take the extraordinary step of reviewing and overturning the district court’s interlocutory ruling. When that motion was in turn denied, the government filed a motion to stay with the U.S. Supreme Court. While the Supreme Court unanimously denied the request as “premature,” it took the unusual step of noting that “the breadth of the [plaintiffs’] claims is striking … and the justiciability of those claims presents substantial grounds for difference of opinion.”
When the case returned to district court, the government moved for summary judgment, again arguing that plaintiffs lacked standing. The district court denied the motion, but gave permission for the government to appeal the denial directly to the Ninth Circuit.
The panel majority’s (Judges Hurwitz and Murguia) opinion focused on one key question: whether Article III of the Constitution gave it the authority to decide plaintiffs’ claims at all. To demonstrate standing, the panel explained, at least one plaintiff had to show (1) he or she had suffered a concrete and specific injury (“injury-in-fact”), (2) the government was a cause of the harm (“traceability”) and (3) federal courts had the authority to grant relief that would remedy the harm (“redressability”).
First, the majority concluded that at least two plaintiffs had in fact demonstrated concrete and particularized injuries as a result of climate change. Those two had been forced to leave their homes—one due to water scarcity and another due to flooding. The fact that climate change affects everyone did not alter this analysis, the majority concluded, because at least those two plaintiffs had presented evidence that climate change had affected them in specific, nonspeculative ways.
Second, the majority concluded that plaintiffs had established a genuine factual dispute as to whether the federal government’s policies were responsible for climate-change-related injuries. It pointed to, for example, the fact that the United States as a whole has accounted for 25% of carbon emissions for over 150 years and still accounts for about 15% of emissions. It also concluded that the federal government’s subsidy and leasing policies (e.g., authorizing commercial use of oil and coal on federal land) were at least partially responsible for these emissions. The panel rejected the government’s argument that this chain between government action and climate-change-related harm was too attenuated, explaining that plaintiffs had presented sufficient evidence to show the current level of emissions was a direct result of over 50 years of federal policy.
Third, the majority concluded that even though plaintiffs had adequately established that the government had caused them concrete harm, the courts lacked the authority to grant the primary relief requested. The majority began by noting that plaintiffs’ requested injunction would not entirely stop climate change, as plaintiffs’ own experts made clear. The court rejected the argument that such partial amelioration of injury is sufficient to establish redressability. Notably, the majority distinguished the Supreme Court’s 2007 ruling in Massachusetts v. EPA, which might seem to support such a rule. The majority explained that Massachusetts concerned a state’s procedural rights (i.e., the right to challenge the EPA’s refusal to regulate greenhouse gas emissions) rather than a group of individuals’ substantive rights.
The majority gave a second reason why plaintiffs’ injuries could not be redressed: the court lacked the power to grant the requested injunction. Any effective plan to combat climate change, the majority reasoned, would require a “host of complex policy decisions.” The power to make these decisions, the court concluded, rests solely with the Legislature or the Executive. Much as with partisan gerrymandering, the majority explained, the courts lack any meaningful standards to guide the exercise of their equitable powers. While the panel majority believed plaintiffs had “made a compelling case that action is needed,” that “case must be made to the political branches or to the electorate at large.”
Judge Staton disagreed that plaintiffs’ injuries were not redressable by the courts, making two basic points. First, she reframed the suit, explaining that plaintiffs were not seeking the right to be entirely free from the effects of climate change but simply to be free from “irreversible and catastrophic climate change.” The courts, she argued, could provide sufficient relief to at least slow the progression of climate change. Second, she argued the court had the power to grant relief on the theory that the history and structure of the Constitution establish a “perpetuity principle,” i.e., that the Constitution is intended to secure prosperity in perpetuity. When political branches fail to uphold this principle, then courts must step in.
Plaintiffs have already announced their intent to request rehearing en banc, which would give a wider array of Ninth Circuit judges the opportunity to review and potentially modify the panel’s decision.
- Given that the Ninth Circuit encompasses most of the western United States—the home of many environmental activists and organizations—the ruling stands as a significant impediment to future climate change litigation, at least by nongovernmental actors. The Supreme Court’s unusual decision to raise justiciability concerns while denying plaintiffs’ stay motion also may suggest that a reversal by that Court is unlikely.
- That said, the majority opinion notably does not foreclose all climate-change litigation in the Ninth Circuit. The opinion is silent on (A) whether a state could bring a similar suit and (B) whether plaintiffs could have sought damages. Those questions will have to be explored in future litigation.
- This case may have significant implications for future litigation between private parties related to climate change. All three judges agreed that it is possible for a private plaintiff to show that (A) climate change has led to a concrete injury and (B) a large entity responsible for a significant level of emissions played a role in causing that climate change. While the court was hesitant to order a separate branch of the government to act, such separation-of-powers/political question concerns would not necessarily apply to a private company. On the other hand, the panel majority was careful to note that the United States’ role in causing carbon emissions was substantial and stretched for decades—a standard that might be difficult to meet with a private company.
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