On January 17, 2020, a three-judge panel of the Ninth Circuit Court of Appeals in a 2-1, thirty-two page decision, authored by Arizona’s former Vice-Chief Justice Andrew Hurwitz, dismissed a climate change lawsuit brought by 21 plaintiffs aged 8 through 19 against the federal government for violating their right to a safe climate. Juliana v. U.S., No. 18-36082 (9th Cir. Jan. 17, 2020).
No doubt inspired by the worldwide impact of now 17-year-old Swedish environmental activist Greta Thunberg, who led the charge for an international school climate strike and addressed the 2018 United Nations Climate Change Conference, the youthful plaintiffs claimed a variety of harms including psychological issues, impairment of recreational interest, the exacerbation of medical conditions and property damage. More particularly, they alleged violations of their constitutional rights and sought declaratory relief requiring the federal government to “phase out fossil fuel emissions and drawdown excess atmospheric carbon dioxide.”
Although the three-judge panel acknowledged that climate change was occurring and that expert evidence established that the rise in atmospheric carbon dioxide was attributable to fossil fuel combustion, and further that the federal government understood the risks of fossil fuel use and increased carbon dioxide emissions, it nevertheless reluctantly concluded that the plaintiffs’ case was better suited to the political branches of government and/or the electorate at large.
In considering whether plaintiffs met the three requirements for Article III standing, the panel concluded that the plaintiffs had properly plead concrete and particularized injuries, that the causation requirement necessary for summary judgment purposes existed as there was at least a genuine factual dispute regarding whether a host of federal policies were a “substantial factor” in causing the claimed injuries.
Opening his opinion with reference to Barry McGuire’s 1965 protest song, the “Eve of Destruction,” Judge Hurwitz noted that the plaintiffs had presented “compelling evidence that climate change has brought that eve nearer.” While expressing empathy for plaintiffs’ position, the Ninth Circuit also observed that plaintiffs had not claimed any violation of statute or regulation by the federal government, but that there sole claim related to the government’s deprivation of a substantial constitutional right – namely a climate system capable of sustaining human life.
The Ninth Circuit also observed that “however belatedly,” the political branches were presently taking some action from encouraging clean energy to the “Green New Deal.” The Ninth Circuit further found that the plaintiffs’ invitation to order the promulgation of a plan “beguiling,” it concluded that it was doubtful any such plan could be effectively supervised and enforced by an Article III court.
In a stern 32 page dissent, Judge Josephine Staton noted that the federal government accepted as fact that the climate change issue had reached a tipping point “crying out for a concerted response,” but nevertheless pressed ahead “toward calamity.” Judge Staton “vehemently disagree[d]” with the majority, noting in part that while global warming is an “imposing conundrum” so to are issues such as “diversity in higher education, the intersection between prenatal life and maternal health, the role of religion in civic society, and many other social concerns.” Ultimately Judge Staton found “that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and had presented sufficient evidence to present those claims at trial.”
What does it all mean? For the moment, it may cause other prospective plaintiffs to carefully ponder the likelihood for success in pursuing related claims. However, while ultimately denying plaintiffs’ relief, the Court went to great lengths to acknowledge the substantive basis for the claims and the reality of the claimed damages. The blistering dissent may be indicative of future court leanings as the judiciary struggles to address its proper role in responding to climate change concerns.