Although Moving Forward for Now, Juliana Still Has a Long Way to Go  

By Hunter Grolman

In 2015, several young plaintiffs filed a unique suit against the United States government in federal district court.[1]  The complaint in Juliana v. United States alleges that the United States’ policies toward climate change have led to violations of the plaintiffs’ rights to life, liberty, and property under the Constitution.[2]  Because the plaintiffs are young – all were between seven and eighteen years old when the litigation started – their argument hinges on the idea that climate change is not just affecting them now, but will also continue to do so into the future.[3]  The complaint also asserts that the young plaintiffs have “an equal protection right to live in the same climate conditions as enjoyed by prior generations.”[4]  As more research begins to indicate that immediate action regarding climate change is a vital need, the outcome of Juliana could determine whether the courts will be a viable route toward such action in the future.[5]

The case has already survived multiple dismissal attempts by the government, and it was set to go to trial in the United States District Court for the District of Oregon on October 29, 2018.[6]  On October 18, President Donald Trump’s administration filed a writ of mandamus petition and application for stay in the United States Supreme Court.[7]  The Court issued a temporary stay the next day, asking the plaintiffs to submit a brief in response to the government’s petition.[8]  The case remained stalled until late in the day on November 2, when the Court issued an order denying the government’s motion for a writ of mandamus dismissing the case and allowing the case to go forward in the district court.[9]  Exactly when the case will go to trial has yet to be determined, but the plaintiffs have requested a status conference to get the process moving again as quickly as possible.[10]

That the Supreme Court took such a step at all is highly unusual, since courts of appeal for the relevant circuit, which in this case is the Ninth Circuit, generally handle appeals from the district courts.[11]  The fact that the Court stepped in could be a signal that there is something that particularly interested the Court in this case.[12]  The existence of such an interest is unsurprising because the plaintiffs’ case is based on a controversial legal theory that, in essence, argues that “a safe climate is a civil right.”[13]  Other plaintiffs have had difficulty gaining acceptance of this theory in the courts, since it is difficult for plaintiffs to show that they have proper standing to bring these cases.[14]  Other courts have dismissed similar climate change suits based on the idea that a plaintiff must show an individual, concrete harm that the court has the power to redress.[15]  The Juliana plaintiffs have tried meet this burden by alleging environmental effects that have already had, or are currently having, deleterious effects on their lives, from floods to droughts.[16]  To redress these harms, the plaintiffs are asking that the court order the government to implement a national plan to reduce fossil fuel emissions and bring down the levels of carbon dioxide in the atmosphere.[17]  The government has consistently argued both that the case should be dismissed because the plaintiffs in Juliana lack the requisite standing and that the rights the plaintiffs assert are not constitutionally protected.[18]

The fact that Juliana v. United States has made it this far into the litigation process is itself remarkable, given the state of the law in this area.[19]  When the Supreme Court first issued the stay, many commentators saw it as a bad sign for the case’s longevity.[20]  In particular, the presence of newly-confirmed Justice Brett Kavanaugh seemed to spell bad news for Juliana because he has historically taken the stance that regulations responding to climate change are political questions that are outside the purview of the courts.[21]  Given Justice Kavanaugh’s judicial record on similar cases, and the new right-leaning majority on the Court, the Court’s refusal to grant the government’s request for dismissal was surprising.[22]  Ultimately,  to prevail on its motion, the government needed to show that it had no other options for relief; in other words, that there was no other way for it to get the case dismissed.[23]  The Supreme Court found that because mandamus may still be available in the Ninth Circuit, the government failed to meet that burden.[24]

Although this most recent ruling is certainly a victory for the young plaintiffs, the case is not yet out of the woods. The government still has options available to it to try and get the case dismissed in the Ninth Circuit because, as the Supreme Court noted in its order, the Circuit Court has dismissed all of the government’s requests without prejudice, meaning the government can make its request again later.[25] The Supreme Court also suggested that circumstances might be more favorable to the government now that the litigation has progressed to a later stage.[26]  A defeat for the Juliana plaintiffs would be a major blow to climate change activists, who hope that the courts might provide a more rapid pathway to change than the legislature.[27] This fact is especially true under the current administration, which has rolled back climate protections significantly.[28]  A loss in this case could make it more difficult for future plaintiffs to bring broad climate-based claims, leading to even greater delays in a time when rapid change is necessary and it is politically unlikely that Congress will act decisively in the near future.[29]

 

[1] Complaint for Declaratory and Injunctive Relief, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015); see also Juliana v. U.S. – Climate Lawsuit, Our Children’s Trust, https://www.ourchildrenstrust.org/us/federal-lawsuit/ (outlining the developments in the lawsuit so far) [hereinafter Climate Lawsuit].

[2] Climate Lawsuit, supra note 1.

[3] James Conca, The U.S. Supreme Court Slows Children’s Climate Lawsuit — For Now, Forbes (Oct. 22, 2018, 6:00 AM), https://www.forbes.com/sites/jamesconca/2018/10/22/the-us-supreme-court-slows-childrens-climate-lawsuit-for-now/#537973e3297e.

[4]  In reUnited States, No. 18A40, 2018 WL 5778259, at *1 (U.S. Nov. 2, 2018).

[5] Coral Davenport, Major Climate Report Describes a Strong Risk of Crisis as Early as 2040, N.Y. Times (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/climate/ipcc-climate-report-2040.html.

[6] Climate Lawsuit, supra note 1.

[7] Id.; Juliana v. United States, 217 F. Supp. 3d 1224, 1234 (D. Or. 2016).

[8] Climate Lawsuit, supra note 1.

[9] In re United States, 2018 WL 5778259, at *2; see also Umair Irfan, The Supreme Court Just Allowed a Major Climate Lawsuit to Go Ahead, Vox (Nov. 2, 2018, 8:54 PM), https://www.vox.com/2018/11/2/18029146/climate-change-lawsuit-children-scotus-supreme-court-juliana [hereinafter Climate Lawsuit to Go Ahead].

[10] Climate Lawsuit to Go Ahead, supra note 9.

[11] Umair Irfan, The Supreme Court is About to Decide if the Children’s Climate Lawsuit Can Proceed, Vox (Oct. 26, 2018, 11:36 AM), https://www.vox.com/energy-and-environment/2018/10/23/18010582/childrens-climate-lawsuit-supreme-court [hereinafter Children’s Climate Lawsuit].

[12] Id.

[13] Id.

[14]Garrett Epps, The Government Is Trying to Silence 21 Kids Hurt by Climate Change, Atlantic (Oct. 24, 2018), https://www.theatlantic.com/ideas/archive/2018/10/government-silencing-kids-hurt-climate-change/573790/.

[15] See Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992) (concluding that plaintiffs with an environmental claim had not sufficiently asserted standing because they did not identify how government projects that threatened protected species would actually harm the plaintiffs).

[16] Epps, supra note 14.

[17] Complaint for Declaratory and Injunctive Relief, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015).

[18] Defendants’ Motion for Summary Judgment, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. May 22, 2018); Phuong Le, US Temporarily Stops Youth Climate Lawsuit Days Before Trial, Tri-City Herald (Oct. 19, 2018, 5:24 PM), https://www.tri-cityherald.com/news/state/washington/article220330125.html.

[19] Epps, supra note 14.

[20] Children’s Climate Lawsuit, supra note 11.

[21] See White Stallion Energy Ctr. v. EPA, 748 F.3d 1222, 1259 (D.C. Cir. 2014) (Kavanaugh, J., dissenting) (arguing that the EPA’s decision to not consider costs when making decisions about regulating power plants was unreasonable); Coal. for Responsible Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 6621785, at *14 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., dissenting) (arguing that certain EPA regulations had exceeded the agency’s statutory authority).

[22] Climate Lawsuit to Go Aheadsupra note 9.

[23] In re United States., No. 18A40, 2018 WL 5778259, at *1 (U.S. Nov. 2, 2018).

[24] Id.

[25] Id.

[26] Id. (explaining that the Ninth Circuit’s earlier dismissals were based on the probability that the plaintiffs’ claims would become narrower as the litigation progressed).

[27] Climate Lawsuit, supra note 1.

[28] See Davenport, supra note 5 (noting that the price on carbon, a major contributor to global warming, has dropped significantly under the Trump administration).

[29] See id. (explaining that to avoid the most serious damage to the environment, the world economy needs to make significant changes in the next few years).