November 20, 2016

Do Kids Have a Constitutional Right to Climate Safety?

Lost in the recent post-election fog was a potentially important development in the world of U.S. climate law: For the first time, a federal court (the U.S. District Court for the District of Oregon) decided that the Fifth Amendment’s guaranty that no person shall be “deprived of life, liberty, or property, without due process of law” includes a right to “a climate system capable of sustaining human life.” In the judge’s words:

[W]here a complaint alleges 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.

This could have enormous consequences if the court’s conclusion that there is such a Constitutional right is eventually upheld and the plaintiffs can actually prove that the government has infringed on that right. It could eventually lead to the federal judiciary compelling the United States to reduce greenhouse gas emissions beyond what it has ever contemplated. Predictably, that prospect has conseratives going ballistic.

The decision will go to the Ninth Circuit Court of Appeals, but when it will weigh in is unknown. Ordinarily, the case would continue to play out in the district court until final resolution before going up on appeal. There are many, many hurdles, after all, between Judge Aiken saying that a Fifth Amendment claim exists as a matter of law, and her saying “I find for the plaintiffs.” The Justice Department, however, could ask Judge Aiken to request that the Ninth Circuit hear the constitutional issue immediately.

The plaintiffs’ central claim is that the federal government has infringed on this (newly determined) Constitutional right by supporting fossil fuel development:

Defendants have knowingly endangered Plaintiffs’ health and welfare by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion, and by subsidizing and promoting this fossil fuel exploitation. All of these deliberate actions by Defendants have cumulatively resulted in dangerous levels of atmospheric CO2, which deprive Plaintiffs of their fundamental rights to life, liberty, and property.

Paralleling this is a claim that the United States has failed to otherwise use its regulatory authority to reduce emissions.

The nominal plaintiffs in Juliana v. United States are about twenty individuals aged 8-19, the group Earth Guardians, and scientist James Hansen as guardian for “Future Generations” (as well as for his own minor granddaughter). This case is the spiritual successor to previous attempts to use common law tort claims to address climate change, which the Supreme Court effectively eliminated in Connecticut v. AEP on the grounds that Congress “displaced” those remedies by authorizing EPA to regulate greenhouse gases under the Clean Air Act. Interestingly, none of the usual environmental litigants—NRDC, Sierra Club, etc.—participated in Juliana because they did not think the case was going anywhere. That will now change.

The defendants in Juliana go far beyond merely EPA and the Department of Energy. They also include the President, the Council on Environmental Quality, the Office of Management and Budget, the Office of Science and Technology Policy, and the Departments of Agriculture, Commerce, Defense, Interior, State, and Transportation. Intervening alongside the federal defendants were the American Petroleum Institute, the American Fuels & Petrochemical Manufacturers, and the National Association of Manufacturers.

In addition to the Fifth Amendment Due Process claim, Judge Aiken also recognized a claim under the “public trust doctrine” against the federal government, i.e., that the United States has a fiduciary duty to preserve the atmosphere for the benefit of all current and future citizens. This is almost as unprecedented as the Constitutional decision, as courts have been leery of saying that the federal government (as opposed to state governments) has such an obligation, and the D.C. Circuit has rejected this precise claim in a previous case brought by largely the same actors.

But even if the Ninth Circuit were to agree with Judge Aiken, because the public trust doctrine is a common law creation, it is vulnerable to Congressional action and Congress may be able to immunize the United States against such claims. In contrast, barring a Constitutional amendment, a “fundamental right” to “a climate system capable of sustaining human life,” if upheld by the Supreme Court, would be here to stay.

Judge Aiken was well aware of the nature of her decision. As she noted, “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.” Nobody could accuse her of that in this decision.

Not too long ago, we wrote that “climate is different” from other environmental issues. We speculated that if Congress continues to do nothing, in another decade or so the Supreme Court might well be inclined to accept an otherwise dubiously broad interpretation of Section 115 of the Clean Air Act. Even the likelihood of a stronger conservative presence on the Supreme Court than seemed probable on November 7th does not change our view. This judgment is a timely reminder that Congress is not the only actor in the climate arena, and that inaction may, in the fullness of time, have very important judicial consequences.