‘Children’s Crusade’ can continue

Courts in the United States are increasingly playing an important role as the federal government continues to weaken or repeal emission regulations and enforcement. Unless President Donald Trump experiences an epiphany, which seems unlikely, his disdain for climate change will continue to promote litigation challenging the federal government. Claims of climate-related justice also will be advanced as science continues to develop the links between man-made emissions of greenhouse gases and the harms from climate change.

Juliana v. United States, 217 F. Supp. 3d 1224, (D. Or. 2016), which has been called the "Children's Crusade," presents novel legal theories to compel the federal government to protect present and future generations from climate change impacts. The plaintiffs, who are 21 children below the age of 20, assert that they have a substantive due process claim to be protected from the harm caused by climate change. Future generations, they argue, will be forced to disproportionately bear the burden of a destabilized climate system due to federal policy. They also argue they are protected by the public trust doctrine, which would necessitate extending public trust duties beyond their historical bounds. The U.S. Supreme Court recently denied the defendants' motion for a stay in the trial court proceedings. On Jan. 8, the district court ruled against plaintiffs' motion for reconsideration, so the case will now move forward in the Oregon federal district court.

The case centers on the allegation that federal officials have promoted systematic energy policies contributing to the atmospheric concentration of carbon dioxide and other greenhouse gases, while knowing the alleged dangers of those policies. Plaintiffs seek to force a change in the United States' policy toward climate change through the implementation of an enforceable national remedial plan. Their legal strategy is different from other climate change litigation, which generally has been based on the violation of federal environmental regulations or statutes, such as the Clean Air Act.

The plaintiffs have successfully overcome several procedural hurdles. Article III of the Constitution defines the proper scope of federal court jurisdiction as limited to "Cases" and "Controversies." One limitation on justiciability is the "political question doctrine." The federal courts abstain from adjudicating certain controversies, because their resolution is properly left to the politically accountable branches, Congress or the executive. The forbearance is rooted in the respect for the separation of powers among the different branches of government. The doctrine should be distinguished from cases having a political impact, because the federal courts regularly adjudicate controversies with political ramifications.

Baker v. Carr, 369 U.S. 186 (1962), is the controlling case on the political question doctrine. Using the factors set out in Baker, the court rejected the defendants' argument that the Juliana case should be dismissed based on that theory. It reasoned that the facts in Juliana did not present a political question merely because it raised an issue of great importance to the political branches. With respect to whether manageable standards exist, the court interpreted the consideration to mean "whether a legal framework exists by which courts can evaluate the claims in a reasoned manner," and not whether the case is complicated or otherwise difficult to decide. The court reasoned that the lawsuit by the plaintiffs is about whether the defendants have violated the plaintiffs' rights, and that these questions are within its jurisdiction.

Standing is another doctrine traceable to the case or controversy requirement. It requires: (1) The plaintiffs must allege a personal injury that is particularized and concrete; (2) the injury must be traceable to the defendant's unlawful conduct; and (3), the alleged injury must be redressable by a favorable decision. The court found that plaintiffs have standing. They alleged identifiable injuries in fact, which were not simply generalized grievances about the alleged effects of climate change. On the issue of traceability, the court recognized that the chain of causation rested on the defendants' responsibility for allowing or producing more than 25 percent of worldwide greenhouse gas emissions over a period of more than 250 years. Although the court recognized that traceability may be difficult to prove at trial, plaintiffs had adequately alleged a sufficient causal link between the defendants' conduct and their asserted injuries. Finally, a plaintiff is not required to prove at the motion-to-dismiss stage that a favorable decision is certain to redress the injury. Rather, it is sufficient to show that the requested remedy would "slow or reduce" the harm. Construing the complaint in the plaintiffs' favor, the requested relief would partially redress their asserted injuries.

As the case moves to consider the merits, the plaintiffs face difficult challenges. No federal court has ruled on an "atmospheric public trust claim," so the theory is unique. The plaintiffs argue that the federal government's action on climate change violates its responsibilities under the public trust doctrine. The seminal Supreme Court decision on public trust is Illinois Central Railroad Company, 146 U.S. 387 (1892), which dealt with submerged lands beneath the Chicago harbor. The court recognized that the public trust doctrine refers to the fundamental understanding that no government can lawfully abdicate its core sovereign powers, which the plaintiffs argue includes the obligation to protect and preserve natural resources. They assert that defendants have violated their duties as trustees by retaining trust control over the ambient atmosphere, while actually allowing its depletion and destruction.

The plaintiffs' constitutional substantive due process claim also presents a challenge. Courts rarely recognize due process as imposing affirmation obligations. Thus, their claim seeks to extend due process beyond government infringing substantive rights to imposing affirmative obligations on the government to prevent climate change.

The plaintiffs in the Juliana case have survived the motion to dismiss and the numerous other procedural obstacles thrown at them during the last three years. A victory on the merits is far from guaranteed, but as the case moves forward it is apt to produce important information on the government's past actions and future obligations. Equally important, the case has awakened and mobilized the interest of many young Americans in climate change. The case currently is being taught in dozens of law schools across the country, as well as in high schools and middle schools. Thus, Juliana v. United States lays the foundation for a meaningful discussion and understanding of climate change both inside and outside the courtroom.

Professor Minan is scheduled to speak on the role of the judiciary in cases of climate change at the upcoming sixth annual international conference at the Kuwait International Law School, Doha City, Kuwait.