9th: Climate is just too complicated for the courts

The 9th U.S. Circuit Court of Appeals' Jan. 17 message to the plaintiffs in Juliana v. United States, 2020 DJDAR 315, was clear: You're right about your constitutional right to a climate system capable of sustaining human life, but protecting that right would just be too complicated for the courts.

The court's decision regrettably passes the buck for climate change -- an apolitical legal issue and crisis requiring the judiciary to say what the law is and develop protective standards -- back to the same political branches of government whose policies have violated the Constitution and fostered the climate crisis in the first place -- something the 9th Circuit itself admitted and acknowledged.

The Juliana case attracted attention for its boldness, and in specifically seeking a court order requiring the government to develop a plan to phase out fossil fuel emissions and draw down excess atmospheric CO2. The case attracted international media attention both for calling attention to the government's role in perpetuating (instead of reducing) greenhouse gas emissions, as well as the intergenerational harms being foisted on young people.

Despite having compelling plaintiffs, a highly effective legal strategy, and a panel of experts, the 9th Circuit dismissed the case on redressability, part of its analysis on standing. While the 9th Circuit doubted that it had the power to actually redress global climate change, the crux of the opinion focused more on its ability to craft and oversee an effective remedy -- with the court concluding that it was "beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan." The judiciary would have to "pass judgment" on the government's response and might require court supervision "for many decades." Absent a clear "constitutional directive or legal standard," an Article III court would simply lack the ability "to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs' right to a "'climate system capable of sustaining human life.'"

The opinion claimed to be respectful of, and to assume, the infringement of the constitutional right at issue, the gravity of the harms alleged by the plaintiffs, and the scientific consensus related to an imminent breakdown of the world's climate system. But the actual logic and conclusion of the opinion suggest otherwise.

For example, the court expressed doubt as to its powers of redressability because the plaintiffs' "requested relief will not alone solve global climate change." But violations of constitutional rights have never been premised on a court's ability to completely and totally solve a problem. Under this logic, the Supreme Court should never have ordered schools desegregated because such an order would not have totally redressed educational inequality and systemic racism between black and white children. It also ignores the fact that the United States is one of the world's largest emitters of greenhouse gases and has an obligation under the United Nations Framework Convention for Climate Change to limit emissions and develop solutions.

The court wrote that it did not want to pass judgment on the government's response or to supervise the government for many decades. But this also does not make sense. Under the court's logic, a judge should feel fine to examine minor constitutional infringement without concern of redressability, but massive or structural violations of constitutional rights should be ignored because they would be too hard or take too long to solve -- thus creating a perverse incentive for the government to "go big" when it infringes constitutional rights.

The court relied heavily on Rucho v. Common Cause, 139 S. Ct. 2484 (2019), a case about gerrymandering, in saying it lacked a legal standard to deal with climate change. But as the dissent notes, nothing about climate change is inherently political. A wildfire will not care whether its victims were Republican or Democrat. A rising sea will target all equally.

The Juliana decision is also out of step with cases coming down from high courts in other countries that are increasingly imposing a positive obligation on governments to redress the imminent climate crisis. In April 2018, for example, and in response to another youth lawsuit, the Supreme Court of Justice in Colombia ordered the government to draw up a plan to reduce deforestation in the Amazon region, which is the main source of greenhouse gas emissions in the country. The decision emphasized the "imminent and serious damage" from such emissions.

Similarly, in December 2019, the Dutch Supreme Court ruled in the Urgenda case that the Kingdom of the Netherlands was legally obligated to reduce greenhouse gas emissions by a minimum of 25% before 2020 compared to 1990 levels. The court invoked international law and the European Convention on Human Rights in outlining that the Netherlands has an obligation to reduce carbon emissions due to the risks of climate change -- risks that threaten Dutch citizens' right to life and well-being. David Boyd, the United Nations special rapporteur on human rights and the environment, said it was "the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions."

The 9th Circuit observed that climate change "is approaching 'the point of no return.' Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies." Yet by doing nothing, the court is the author of its own fecklessness. The government is free to promote activities that infringe constitutional rights, and if the issues are too complex, the infringements too massive, or there is no guarantee of a total solution, the opinion suggests that a judge should not do anything. This is at odds with common sense, as well as the generally accepted legal maxim, "Where there is a right, there is a remedy." In Marbury v. Madison, the Supreme Court noted, "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." 1 Cranch 137, 163, 5 U.S. 137 (1803). Similarly, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court carved out direct remedies for individuals who faced constitutional harms from federal officials, even in the absence of a Congressional statute, because "it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy in these circumstances." Id. at 411 (Harlan J., concurring).

The 9th Circuit's judgment effectively tells Americans that the courts should sit out the greatest civil and human rights issue of the 21st century. The decision will tell future generations that just when the world needed brave government officials to take the action needed to keep the planet habitable, those officials looked the other way -- afraid to challenge a dying status quo, too faithful to a flawed destiny, when courage and faith to constitutional justice was the appropriate response. 