-In re United States, ___ S.Ct. ___, 2018 U.S.LEXIS 6514 (U.S.Sup.Ct., Nov. 2, 2018, case no. 18A410); -Kelsey Cascadia Rose Juliana, et al. v. United States (9th Cir., Jan. 7, 2019, case no. 18-36082); -United States v. United States District Court (In re United States), 2018 U.S.App.LEXIS 31961 (9th Cir., Nov. 8, 2018, case no. 18-73014);  -In re United States, 895 F.3d 1101 (9th Cir.2018.)-Juliana v. United States, _ F.Supp.3d _, 2018 U.S.Dist. LEXIS 176508 (D.Or., Oct. 15, 2018);-Juliana v. U.S., 2018 U.S.Dist.LEXIS 207366 (D.Or., Nov. 21, 2018, case no. 15-01517).).

A group of individuals aged 8-19, Earth Guardians, and Dr. James Hansen, acting as guardian for plaintiff “future generations” filed a lawsuit in the U.S. District Court in Oregon to challenge the Federal Government’s actions and inactions that they assert are a substantial cause in the scope and severity of climate change and will lead to substantial harm to “future generations.”  The claims involve many forms of federal agency conduct and rely on the Equal Protection and Due Process clauses of the Fifth Amendment and the implicit right to a stable climate and a violation of the public trust doctrine, both arising from the Ninth Amendment.  The National Association of Manufacturers, American Petroleum Institute and the American Fuel & Petrochemical Manufacturers intervened.  While the Federal Defendants admitted that climate change is happening, that it is caused in significant part by humans, specifically human induced fossil fuel combustion, and poses a ‘monumental’ danger to Americans’ health and welfare, the Federal Defendants and Intervenors nevertheless filed a motion to dismiss.  On November 10, 2016, U.S. District Court denied the motions to dismiss, while acknowledging that “[t]his 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 plaintiff’s fundamental constitutional rights to life and liberty.”  (Juliana v. United States, 217 F.Supp.3d 1224, 1261 (D.Or.2016).  Twice the Ninth Circuit denied Federal Defendants’ petitions for writ of mandamus, determining that the issues raised “are better addressed through the ordinary course of litigation.” (In re United States, 895 F.3d 1101 (9th Cir.2018.)       

The Federal Defendants then filed a motion for judgment on the pleadings in the District Court on the grounds that plaintiffs failed to state claim under the Administrative Procedures Act (“APA”), and that the requested relief is barred by the separation of powers. The District Court denied the motion for judgment on the pleadings on October 15, 2018, because “the separation of powers did not require dismissal of this lawsuit now.” (Juliana v. United States, ___ F.Supp.3d ___, 2018 U.S.Dist. LEXIS 176508 (D.Or. 2018).  

The Federal Defendants also filed a motion for summary judgment on the grounds that (1) there are no genuine issues of material fact; (2) plaintiffs lack Article III standing to sue; (3) plaintiffs have failed to assert a valid cause of action under the APA; (4) plaintiffs’ claims violate separation of powers principles; (5) plaintiffs have no due process right to a climate system capable of sustaining human life; and (6) the federal government has no obligations under the public trust doctrine.  The District Court largely denied that motion.  (Ibid.)  

As to standing, the District Court responded that although it will “revisit all of the elements of standing after the factual record has been fully developed at trial,” plaintiffs had sufficiently shown facts supporting standing for summary judgment purposes because (a) plaintiffs provided numerous examples of injuries allegedly resulting from climate change, despite the widespread nature of those injuries that are not particularized to these plaintiffs; (b) plaintiffs provided “sworn affidavits attesting to their specific injuries, as well as a swath of extensive expert declarations showing those injuries are linked to fossil fuel-induced climate change,” and the Federal Defendants “offer nothing to contradict these submissions”; (c) plaintiffs provided sufficient evidence to show a genuine issue of material fact regarding the causation issue because “plaintiffs have proffered uncontradicted evidence showing that the government has historically known about the dangers of greenhouses gases but has continued to take steps promoting a fossil fuel based energy system”; because federally authorized emissions “make up a significant portion of global emissions”; and because Federal Defendants’ “systematic conduct” in which it “permits, licenses, leases, authorizes, and/or incentivizes the extraction, development, processing, combustion, and transportation of fossil fuel” caused plaintiffs’ injuries; (d) contrary to the Federal Defendants’ argument that the remedies sought by plaintiffs are beyond the court’s authority to provide, the court held that there is a substantial likelihood that the court could provide meaningful relief for the plaintiffs who seek, inter alia, an order that Federal Defendants “prepare and implement an enforceable national remedial plan to phase our fossil fuel emission and draw down excess atmospheric CO₂” and bring the conduct of the Federal Defendants “into constitutional compliance.” (Ibid.)         

The District Court also held that plaintiffs’ claims are not governed by the APA. (Ibid.)

As to the separation of powers, the District Court rejected the Federal Defendants’ arguments for the same reasons it denied the earlier motion to dismiss.  Furthermore, the court explained:

After a fuller development of the record and weighing of evidence presented at trial, should the Court find a constitutional violation, then it would exercise great care in fashioning a remedy determined by the nature and scope of that violation. Additionally, many potential outcomes and remedies remain at issue in this case. The Court could find that there is no violation of plaintiffs’ rights; that plaintiffs fail to meet one or more of the requirements of standing; or, after the full development of the factual record, that the requested remedies would indeed violate the separation of powers doctrine. As has been noted before, even should plaintiffs prevail at trial, the Court, in fashioning an appropriate remedy, need not micro-manage federal agencies or make policy judgments that the Constitution leaves to other branches.

Thus, the court held that the record before the Court at this stage of the proceedings does not warrant summary dismissal.  (Ibid.)

As to the due process claims, the Federal Defendants repeated their argument from the motion to dismiss that there is no right to a climate system capable of sustaining human life.  The District Court rejected that argument, and cited the following from its earlier denial of the motion to dismiss: 

where a complaint alleges knowing governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.

Furthermore, the District Court held that there is a genuine issue of disputed facts surrounding the government’s knowledge of climate change’s dangers and its “alleged deliberate indifference.” Therefore, there are facts to establish the “danger creation” exception to the general rule that the Due Process Clause does not impose an affirmative obligation on the government to act to secure life, liberty or property.  The court admitted that “this claim involves complicated and novel questions about standing, historical context, and constitutional rights.”  The court pointed out that, even with a full factual record after trial, “plaintiffs must still clear a very high bar to ultimately succeed.”  (Ibid.)

As to the public trust doctrine, the District Court refused to change its earlier holding that “the public trust doctrine is deeply rooted in our nation’s history and that plaintiffs’ claims are viable.” The court held that genuine issues of material fact remain as to the specific allegations made by plaintiffs.  (Ibid.)

As to plaintiffs’ equal protection claim, the District Court reiterated its earlier holding that the right “to a climate system capable of sustaining human life” is a “fundamental right.”

Thus, the District Court denied Federal Defendants’ motion for judgment on the pleadings, and denied their motion for summary judgment on all grounds except for plaintiffs’ claim based on the Ninth Amendment.  The District Court also denied Federal Defendants’ request to certify both motions for interlocutory appeal.  (Ibid.)

The Federal Defendants then applied to the U.S. Supreme Court for a stay of the proceedings on the grounds that the litigation is beyond the limits of Article III of the U.S. Constitution.  By a 7-2 vote, the Court denied that application on November 2, 2018.  The Court held that “the Government’s petition for a writ of mandamus does not have a ‘fair prospect’ for success in this Court because adequate relief may be available in the United States Court of Appeal for the Ninth Circuit.”  The Court explained that, although the Ninth Circuit has twice denied the Government’s request for mandamus relief, “it did so without prejudice” primarily due to the early stage of the likelihood, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions. (In re United States, ___ S.Ct. ___, 2018 U.S.LEXIS 6514 (U.S.Sup.Ct., Nov. 2, 2018, case no. 18A410.)  

Federal Defendants filed a petition for writ of mandamus in the Ninth Circuit, along with a motion for a temporary stay of the District Court proceedings.  On November 8, 2018, the Ninth Circuit granted the stay of the trial pending consideration of the petition for writ of mandamus.  (United States v. United States District Court (In re United States), 2018 U.S.App.LEXIS 31961 (9th Cir., Nov. 8, 2018, case no. 18-73014).)  The Ninth Circuit also invited the District Court to revisit its decision denying interlocutory review  

While standing by its prior earlier jurisdictional and merit issues, the District Court then certified the case for interlocutory appeal on November 21, 2018. (Juliana v. U.S., 2018 U.S.Dist.LEXIS 207366 (D.Or., Nov. 21, 2018, case no. 15-01517).)  On December 26, 2018, the Ninth Circuit granted the Federal Defendants petition for permission to appeal, and denied the petition for writ of mandamus as moot.  That interlocutory appeal is now being briefed on an expedited schedule. (Kelsey Cascadia Rose Juliana, et al. v. United States (9th Cir., Jan. 7, 2019, case no. 18-36082).)

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.