A three-judge panel of the U.S. Court of Appeals for the 9th Circuit on June 4 posed tough questions to lawyers on both sides of a legal fight over whether the federal government's actions have contributed to global climate change and, as a result, violated the Fifth Amendment rights of young Americans.
A federal court ruling that the government must act to tackle global climate change could have wide-reaching implications for U.S. energy policy, particularly if the case is resolved during the current administration, which has moved to unwind regulations restricting fossil fuel development.
At the hearing in Portland, Ore., the judges focused largely on the constitutional question and a potential remedy but, ultimately, the judges will decide whether the case has enough merit to proceed to trial in a lower court. Judge Ann Aiken of the U.S. District Court for the District of Oregon, Eugene Division, had scheduled a trial in the case in October 2018 but the federal government, after multiple failed appeals, succeeded in convincing the 9th Circuit to look at the case before a trial could occur.
The judges presiding in the case, all of whom are Obama appointees, are circuit judges Mary Murguia and Andrew Hurwitz and U.S. District Court for the Central District of California Judge Josephine Staton.
Hurwitz noted that the judges are being asked to break new ground. "We still have to find this constitutional right that you assert in order to give this remedy, do we not?" he said.
Julia Olson, the lawyer for the youths and the head of the group Our Children's Trust, replied, "The Supreme Court has already recognized that the liberties that we all hold include our right to bodily integrity and personal security and family autonomy."
But Hurwitz said, "To be fair, look, you're arguing for us to break new ground. ... You may be right, I'm sympathetic to the problems you point out, but you shouldn't say this is just an ordinary suit and all we have to do is follow A, B and C and we get there. You're asking us to do a lot of new stuff, aren't you?"
"We're asking the court to apply bedrock constitutional law and principles to a wholly new set of facts," Olson replied.
The 21 youths, who first raised the lawsuit in 2015 against the Obama administration, claimed that the federal government, through leases to fossil fuel producers on federal lands and other decisions and regulations, has left climate change unchecked, which violated their right to healthy air and life, liberty and property. Some of the young plaintiffs argued in earlier proceedings that their homes were flooded due to sea level rise and extreme weather events and that they have lost food security, economic stability, and recreational interests due to climate destabilization and ocean acidification.
But Jeffrey Clark of the U.S. Department of Justice during the hearing reiterated the government's arguments that the courts do not have jurisdiction to effectively usurp the authority of the U.S. Congress and the executive branch to direct agencies to act, or not act, on climate-related issues. The Justice Department has also previously said that no one has shown that the government's inaction is linked to the injuries the youths claim to have suffered due to climate change, although that point was not discussed in detail at the June 4 arguments.
But Clark did argue that the case is not a constitutional one but instead involves the Administrative Procedures Act, which would inherently mean the plaintiffs have no standing. The lawsuit appears to seek to enforce the constitution "but, in reality, it's nothing more than a direct assault on the constitutional design," Clark told the judges.
Olson argued that the action the youths seek — for the courts to direct federal agencies to move to reduce emissions and pollution — cannot be addressed by challenging federal actions on a case-by-case basis. "The scale of the problem is so big because of the systemic conduct of the government," Olson said.
Hurwitz in questioning Clark later noted Olson's systemic argument. "On the procedural side, your friend says, and I find this pretty compelling, 'gee, if I took on any individual agency decision and said it violated my constitutional right, assuming there is one, to this safe environment or pollution free environment or whatever you want to call it, the agency would say there's no evidence that our teeny, tiny little action here deprives you of constitutional rights.' And [the agency] would be correct," Hurwitz said.
Clark answered that on big issues such as race and gender — Olson had referred to prior case history on those topics to support her arguments — former Supreme Court Justice Thurgood Marshall "didn't bring one gigantic case to establish racial equality, right. There was an entire program, it was unfolded step by step. There's nothing that would prevent them from following that approach."
But, said Staton, "discrimination is unconstitutional even on a small scale. Isn't the nature of this right, as they framed it if the court finds it exists, ... doesn't it have to be pursued systemically? Doesn't that distinguish it from something like Brown v. Board of Education or other cases that say, 'let's just start with desegregating our schools and then we can move from there.' How do they do that in a case where the very nature of the right is global CO2 emissions?"
Clark answered that the young plaintiffs could instead get state attorneys general to sue the government on the issue of climate change, given that the Supreme Court has found that states have that right.
In his closing statement, Clark said the case points a "dagger at the separation of powers. There are no logical stopping points on Miss Olson's theory. You could take that and you could apply it to any Clean Air Act situation because people breathe air pollution, they can die ... and if you do that, you set the Clean Air Act for naught." (Kelsey Rose Juliana v. USA, et al, 18-36082)