A group of 21 individuals aged 8-19, an environmental organization, and a guardian for plaintiff “future generations” filed a lawsuit in the U.S. District Court in Oregon to challenge 50 years of fossil fuel policies of the United States Government. Plaintiffs alleged that the Federal Government’s actions and inactions are a substantial cause in the scope and severity of climate change and will lead to substantial harm to “future generations.” Among the wide-reaching U.S. programs and policies identified in this lawsuit were:
- The Bureau of Land Management’s authorization of leases for 107 coal tracts and 95,000 oil and gas wells;
- The Export-Import Bank’s provision of $14.8 billion for overseas petroleum projects;
- The Department of Energy’s approval of over 2 million barrels of crude oil imports;
- The Department of Agriculture’s approval of timber cutting on federal land;
- The undervaluing of royalty rates for federal leasing;
- Tax subsidies for purchasing fuel-inefficient sport-utility vehicles;
- The “intangible drilling costs” and “percentage depletion allowance” tax code provisions; and
- The government’s use of fossil fuels to power its own buildings and vehicles.
Plaintiffs did not allege that the Federal Government was violating any statute or regulation. Nor did they assert the denial of a procedural right. Also, they did not seek damages under the Federal Tort Claims Act. Rather, plaintiffs sought declaratory and injunctive relief under claims that allege (a) a violation of the Equal Protection Clause of the Fifth Amendment; (b) a substantive constitutional right to a “climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment; (c) an implicit right to a stable climate under the Ninth Amendment; and (d) a violation of the federal public trust doctrine.
The U.S. District Court for the District of Oregon granted the Federal Government’s Motion For Summary Judgment as to the Ninth Amendment claim, and as to a part of the equal protection claim and dismissed President Trump as a defendant. As to every other claim, the District Court denied the Motion For Summary Judgment brought by the U.S. An interlocutory appeal was taken to the Ninth Circuit.
On January 17, 2020, in a 2-1 decision by a panel of judges that were all appointed by President Obama, the Ninth Circuit held that the Motion For Summary Judgment should be granted and the case dismissed. The majority opinion began this way:
In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.
As to the merits of the plaintiffs’ claims, the Court cited conflicting case law and admitted: “Reasonable jurists can disagree about whether the asserted constitutional right exists.” However, the merits of plaintiffs’ constitutional claims were not what the Ninth Circuit’s opinion turned on. The court stated:
The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”
The majority opinion found that these individual plaintiffs met the first element of Article III standing. Plaintiffs showed concrete and particularized injuries, such as water scarcity and rising sea levels.
Also, the Court also held that plaintiffs were able to show the second requirement for standing: The Court stated:
The plaintiffs’ alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. A significant portion of those emissions occur in this country; the United States accounted for over 25% of worldwide emissions from 1850 to 2012, and currently accounts for about 15%. And, the plaintiffs’ evidence shows that federal subsidies and leases have increased those emissions. About 25% of fossil fuels extracted in the United States come from federal waters and lands, an activity that requires authorization from the federal government.
Thus, there was at least a genuine factual dispute as to whether the federal government’s actions and policies over the last 50 years were a substantial factor in causing the plaintiffs’ injuries.
But the Court found that the third element for Article III standing was not met in this case. Plaintiffs’ alleged injuries are not likely redressable by a favorable judicial decision. The Court described the nature of the injunction that plaintiffs were seeking in these words:
The crux of the plaintiffs’ requested remedy is 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. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.
The Court noted that even if the challenged programs were stopped, that would not solve the problem:
Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.
The Court stated: “Reluctantly, we conclude that such relief is beyond our constitutional power.”
The majority rejected the position of the dissenting Judge, and explained why judicial relief was not available:
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. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.
The Ninth Circuit was bound by the reasoning of the U.S. Supreme Court’s recent decision in Rucho v. Common Cause, 139 S.Ct. 2484 (2019) regarding the non-actionable political gerrymandering claims, and the need to have standards to guide courts in the exercise of their discretion. In this climate change context, there were no such standards. No court could sustain or enforce a plan required of the Federal Government that is sufficient to remediate the claimed constitutional violation of the plaintiff’s right to “a climate system capable of sustaining human life.”
Therefore, the Ninth Circuit panel concluded that “the plaintiffs’ impressive case for redress” must be presented to the political branches of government. The Court explained: “That the other branches [of government] may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.” In response to the dissent’s argument that this suit seeks to enforce “the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction,” majority concluded: “Not every problem posing a threat – even a clear and present danger – to the American Experiment can be solved by federal judges.”
Lawyers for the plaintiffs commented: “We will be asking the full Ninth Circuit to review the determination that federal courts can do nothing to address an admitted constitutional violation.” (See https://www.mercurynews.com/2020/01/17/appeals-court-tosses-out-kids-lawsuit-against-u-s-over-climate-change/ (last accessed January 20, 2020).)
Glen Hansen is senior counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.