Juliana climate change case. Ninth Circuit full of sympathy but dismisses suit for failure to establish redressability.

The last few years have seen several public law suits against governments by NGOs seeking, not unreasonably, that they do more to combat global warming. The one victory so far has been that in the Netherlands with the Supreme Court’s decision in the Urgenda case in December 2019 upholding the decisions of the lower courts that the Dutch Government must cut greenhouse gas emissions by 25% over 1990 levels by the end of 2020. Apart from that, it has been supportive words and defeats all the way. That trend has continued with last Friday’s majority decision by the Court of Appeals for the Ninth Circuit in Juliana v US, the so-called Childrens’ Climate case.

The case was brought in 2015 by various schoolchildren who asserted that the US Government’s conduct in relation to global warming constituted violations of: their substantive rights under the Due Process Clause of the Fifth Amendment;  their rights under the Fifth Amendment to equal protection of the law; their rights under the Ninth Amendment; and the public trust doctrine. The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”

The district court denied the government’s motion to dismiss, concluding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life.”

The Court of Appeals noted the evidence supporting the fact that the world now faces an imminent climate catastrophe, evidence supported by government scientists. Judge Hurwitz stated:

“As early as 1965, the Johnson Administration cautioned that fossil fuel emissions threatened significant changes to climate, global temperatures, sea levels, and other stratospheric properties. In 1983, an Environmental Protection Agency (“EPA”) report projected an increase of 2 degrees Celsius by 2040, warning that a “wait and see” carbon emissions policy was extremely risky. And, in the 1990s, the EPA implored the government to act before it was too late. Nonetheless, by 2014, U.S. fossil fuel emissions had climbed to 5.4 billion metric tons, up substantially from 1965. This growth shows no signs of abating. From 2008 to 2017, domestic petroleum and natural gas production increased by nearly 60%, and the country is now expanding oil and gas extraction four times faster than any other nation

The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.”

The majority of the Court of Appeals however dismissed the claim on the grounds that to establish redressability under Article III of the Constitution, the plaintiffs must show that the relief sought is (1) substantially likely to redress their injuries; and (2) within the district court’s power to award. The crux of the plaintiffs’ requested remedy was 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. This would draw the judiciary into policy making, a matter which was something for the ballot box. Judge Hurwitz stated:

“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.

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’ 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.”

Judge Staton, dissenting, stated:

“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.”

And

“What sets this harm apart from all others is not just its magnitude, but its irreversibility. The devastation might look and feel somewhat different if future generations could simply pick up the pieces and restore the Nation. But plaintiffs’ experts speak of a certain level of global warming as “locking in” this catastrophic damage. Put more starkly by plaintiffs’ expert, Dr. Harold R. Wanless, “[a]tmospheric…warming will continue for some 30 years after we stop putting more greenhouse gasses into the atmosphere. But that warmed atmosphere will continue warming the ocean for centuries, and the accumulating heat in the oceans will persist for millennia” (emphasis added). Indeed, another of plaintiffs’ experts echoes, “[t]he fact that GHGs dissipate very slowly from the atmosphere and that the costs of taking CO2 out of the atmosphere through non-biological carbon capture and storage are very high means that the consequences of GHG emissions should be viewed as effectively irreversible” (emphasis added). In other words, “[g]iven the self-reinforcing nature of climate change,” the tipping point may well have arrived, and we may be rapidly approaching the point of no return.”

 

Indeed.

 

The current concentration of CO2 in the earth’s atmosphere is 413.25 ppm. To have a 67% chance of keeping global warming to 1.5 degrees over pre-industrial levels, the  CO2 concentration in the earth’s atmosphere should not exceed 430 ppm. The annual mean rate of increase of CO2 in the earth’s atmosphere in the last ten years is around 2.5ppm.