The difficulty with the climate change problem is that it is a long-term one and thus policy makers, who tend to be older people, may not view it with the same sense of urgency since the most adverse consequences will occur after they are dead. It is young people who will pay the price for my generation’s inaction. Hence I was intrigued by this court ruling that I missed when it was handed down on November 10th of last year. It should have got much wider publicity than it did.

In the case of Juliana v. United States, a group of eight children and adolescents between the ages of eight and nineteen filed a lawsuit against the US government saying that for over five decades it had neglected to protect the environment even though it had evidence that human actions were causing serious deterioration, and that as a result it is they who would suffer the harm.

The Oregon US district judge Ann Aiken’s opinion begins by describing what the case is about.

Plaintiffs in this civil rights action are a group of young people between the ages of eight and nineteen (“youth plaintiffs”); Earth Guardians, an association of young environmental activists; and Dr. James Hansen, acting as guardian for future generations. Plaintiffs filed this action against defendants the United States, President Barack Obama, and numerous executive agencies. Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, . . . permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, . . . deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations. [Citations omitted – MS]

The defendants did the usual procedural thing, asking that the case be summarily dismissed on lack of standing and jurisdictional grounds and that this was not a proper matter for judicial review. The Magistrate Judge Coffin who first heard the case declined to dismiss it and so it went to judge Aiken where the motion to dismiss was again raised and it is interesting to see the Obama administration and the fossil fuel industry teaming up as defendants against the children.

Defendants moved to dismiss this action for lack of subject matter jurisdiction and failure to state a claim. Intervenors the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute moved to dismiss on the same grounds. After oral argument, Magistrate Judge Coffin issued his Findings and Recommendation (“F&R”) and recommended denying the motions to dismiss.

In upholding the right of the children to pursue the case, judge Aiken issued some strong words on the role of the judiciary, rejecting the usual ways in which the government tries to evade court hearings by claiming the plaintiffs have no standing to sue or that the issue is a political matter in which the courts have no right to intervene. The judge said that to do so in this case would be to miss the wood for the trees.

Throughout their objections, defendants and intervenors attempt to subject a lawsuit alleging constitutional injuries to case law governing statutory and common-law environmental claims. They are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws. But that argument misses the point. This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions — whether or not they violate any specific statutory duty — have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.

A deep resistance to change runs through defendants’ and intervenors’ arguments for dismissal: they contend a decision recognizing plaintiffs’ standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal. This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs’ allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.

Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.

That last quoted sentence is the kicker and is perfectly accurate. As Patrick Veasy writes, “The decision represents the first time a court has determined that plaintiffs sufficiently alleged that the government’s conduct infringed their constitutional right to a clean and healthy climate system” and that “the decision represents a novel approach to addressing climate change issues.”

The case still has a long way to go. What the judge ruled is that the case can go to trial but you can be sure that the defendants will fight it tooth and nail all the way to the US Supreme Court if necessary. Now be the Trump administration will replace the Obama one as the lead defendant but this will likely not change the defense strategy, except that they may work even more closely with the fossil fuel industry in fighting the children.