9th Circuit ‘reluctantly’ holds children’s climate suit lacks standing

With express regret, and over a heated dissent, a 9th U.S. Circuit Court of Appeals panel decided Friday the judicial branch couldn't help a group of young plaintiffs hoping to force the federal government to stop enabling and encouraging fossil fuel use.

The court's opinion acknowledged carbon dioxide emissions have rendered Earth's climate increasingly less habitable and endangered the plaintiffs by raising sea levels and worsening droughts. And it noted government actors have understood since "at least 1965" that fossil fuel burning would raise global temperatures. But the split panel found it lacked constitutional authority to prescribe the sort of sweeping solutions needed to remedy a situation it described as dire.

"There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change," wrote Circuit Judge Andrew D. Hurwitz's. "Reluctantly, we conclude that such relief is beyond our constitutional power."

Hurwitz reasoned "any effective plan" to curb climate change "would necessarily require a host of complex policy decisions," which the Constitution has entrusted, "for better or worse, to the wisdom and discretion of the executive and legislative branches."

Deficient of the power to fully redress the plaintiffs' asserted harms, the divided panel concluded the case lacked standing.

"The plaintiffs' impressive case for redress must be presented to the political branches of government," reads the majority opinion, which Circuit Judge Mary H. Murguia joined. Juliana v. U.S., 2020 DJDAR 315.

The group of minor plaintiffs filed suit in 2015, alleging federal actors were violating their Fifth Amendment right to a "climate system capable of sustaining human life" by leasing federal lands and offering tax breaks to fossil fuel companies while largely neglecting renewable energy sources.

The panel concluded "reasonable jurists can disagree" about whether the claimed constitutional right exists but emphatically seconded the idea that government actors have for generations been delinquent in addressing an existential peril.

"A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change," Hurwitz wrote. "That failure to change existing policy may hasten an environmental apocalypse."

Julia Olson, executive director for the legal non-profit Our Children's Trust and lead attorney for the plaintiffs, credited the court's depiction of a government indifferent to a developing disaster.

"The Court recognized that climate change is exponentially increasing and that the federal government has long known that its actions substantially contribute to the climate crisis," Olson responded in an email Friday.

Olson emphasized the matter is "far from over" and vowed to seek rehearing before an en banc circuit court, where she believes Friday's dissenting view, articulated by visiting U.S. District Judge Josephine L. Staton, may be vindicated.

Staton chastised her panel colleagues for "throw[ing] up their hands," notwithstanding the climate emergency they described. And she excoriated the government's arguments in defense.

"The government bluntly insists that it has the absolute and unreviewable power to destroy the Nation," Staton wrote.

"Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation's willful destruction," the dissent continued.

In her email Olson wrote she was "optimistic that Judge Staton's opinion will carry the Court at the end of the day."