The high-profile, youth climate litigation titled Juliana v. United States has been referred to in the media as the “case of the century” and the “biggest case on the planet.”  U.S. Presidents Obama, Trump and Biden tried hard for eight years to end it – perhaps one of the few things they have in common – but have failed thus far.  A strongly worded court order was issued on December 29, 2023, allowing the case to go forward.  However, that has not stopped the U.S. Department of Justice (DOJ) from continuing with its relentless barrage of aggressive legal tactics to try and prevent the matter from ever reaching trial.

This is a brief summary of the long and arduous saga of these tireless young plaintiffs and their attorneys at Our Children’s Trust.

In 2015 a group of 21 young Americans, between the ages of 18 and 19, filed their constitutional, civil rights, climate claim in the federal District Court in Oregon against the U.S. government.  Future generations were included in the proceeding through a guardian, Dr. James Hansen (professor, climate activist and former NASA scientist).  The plaintiffs contend that:

  • the government has known for many decades about the severe harms caused by fossil fuels;
  • for more than 50 years it has contributed to climate change by inaction and promoting the use of fossil fuels;
  • the government has been increasingly promoting and subsidizing fossil fuel extraction and consumption at a “catastrophic level,” and thereby worsening the climate disaster;
  • the U.S. Constitution guarantees the right to have a stable climate system capable of sustaining human life;
  • the government has violated the plaintiffs’ fundamental rights under the Due Process Clause and Equal Protection Clause of the Fifth Amendment in the Constitution, unenumerated rights in the Ninth Amendment, and the public trust doctrine.

Initially they sought an injunction, including a directive that the government “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 to stabilize the climate system.”  They were subsequently forced to withdraw this aspect of the claim after the government’s successful appeal to the Ninth Circuit Court of Appeals.  The amended claim seeks declaratory relief acknowledging the violation of rights by the government, and a more limited injunction to restrain the government from carrying out policies, practices, and affirmative actions that render the national energy system unconstitutional in a manner that harms the plaintiffs.

Judge Ann Aiken, a member of the federal District Court in Oregon, has been supportive of allowing the case to move forward.  It appears that her earliest decision in this file dates back to 2016, when she upheld the order of another judge who denied the government’s motion to dismiss the case without trial.  Since then, there has been a steady stream of motions brought by the government, several appeals to the Ninth Circuit Court of Appeals (orders were made by that court each year between 2017 and 2021), and three orders by the U.S. Supreme Court in 2018.  Two different dates for the commencement of trial (February 5 and October 29, 2018) have come and gone.  Just days before the second date the trial was halted by order of Chief Justice John Roberts of the U.S.S.C.  Add to this a motion by 18 Republican Attorneys General to intervene in the case as added defendants, in order to help defeat the plaintiffs.  That motion was dismissed by Judge Aiken on March 15, 2023.

The government has been playing hardball.

The defendants rely on arguments similar to those advanced in youth climate litigation here in Canada, such as Mathur v. Ontario and La Rose v. Canada.  Both claims invoked sections 7 (right to life, liberty and security of the person) and 15 (discrimination based on age) of the Canadian Charter of Rights and Freedoms.  The defenses include allegations such as:

  • plaintiffs lack standing to sue;
  • plaintiffs are not affected by climate change any more than other people;
  • plaintiffs’ claims are not ‘justiciable,’ as they involve issues that are beyond the capacity and expertise of courts to adjudicate;
  • for example, the climate crisis is very complex, involves governmental policy decisions, and extends to all levels and branches of government;
  • climate change is a political issue, and responding to it should be left to the elected branch of government;
  • a court order cannot effectively redress the impacts of climate change;
  • the climate problem is international in scope, and requires global cooperation, something beyond the reach of the court;
  • several large greenhouse gas (GHG) emitting countries elsewhere are unwilling to help.

After a full hearing the Mathur proceeding was dismissed on April 14, 2023.  The judgment by Justice Vermette in the Ontario Superior Court of Justice is reviewed HERE.  The appeal was heard by the Ontario Court of Appeal on January 15, 2024, and a decision is pending.  La Rose, a claim based in British Columbia, was struck out on a preliminary motion on October 27, 2020, but saved by the Federal Court of Appeal in a decision issued on December 12, 2023.  More information is available HERE.

In Juliana some other judges along the way have also tried to help.  For example, in a dissenting opinion in the Ninth Circuit Court of Appeals issued on January 17, 2020, Judge Josephine Staton wrote (starting at p.32):

“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity.  It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.  Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.  On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists.  But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

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.  So viewed, plaintiffs’ claims adhere to a judicially administrable standard.  And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress.  Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province.”

The majority opinion in the court, resulting in dismissal without trial, delivered a near death experience for the case.  Normally that would be the end of the road for the plaintiffs.  But since the appeal decision was silent with respect to allowing further amendments to the plaintiffs’ claim, Judge Aiken ordered on June 1, 2023, that she would allow it to be amended in order to correct the defects identified by the appeal court’s majority.  Her decision stated: “It is a foundational doctrine that when government conduct catastrophically harms American citizens, the judiciary is constitutionally required to perform its independent role and determine whether the challenged conduct, not exclusively committed to any branch by the Constitution, is unconstitutional.”

Judge Aiken’s most recent order was issued on December 29, 2023.  It partially denied another motion to dismiss, as well as government motions to appeal and/or stay the litigation.  Click HERE to read the 49-page decision.  It outlines the DOJ’s inexorable campaign to stop the case from going forward.

That said, the order did allow the government’s objections to some areas of the amended claim.  It struck out the claim for an injunction (due to the binding nature of the decision made by the Ninth Circuit Court of Appeals), the equal protection claim for unborn members of future generations and minor children who cannot vote (age is not considered a “suspect class” for discrimination), and the Ninth Amendment claim (the right to be sustained by vital natural systems, including the climate).

Most importantly, the decision upheld the plaintiff’s right to proceed to trial and included, among others, the following rulings:

  • The claim that governmental action has been damaging the climate system in a way that harms humans, can proceed.
  • The allegation that the government failed to adequately regulate CO2 emissions by third parties, is acceptable.
  • The plaintiffs may rely on the “venerable” public trust doctrine, as environmental statutes have not “displaced” it. (p.48)
  • “The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused.” (p.6)
  • Judges have “the unique and singular duty to both declare constitutional rights and prevent political acts that would curb or violate those rights.” (p.31)
  • “[T]he right to a climate system that can sustain human life is fundamental to a free and ordered society.” (p.39)
  • An allegation that “governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, damage property, threaten human food sources, and dramatically alter the planet’s ecosystem” supports “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.” (p.40)
  • The judiciary “cannot vow to uphold the Constitution’s protection of a God-given right to life, and at the same time, exercise ‘judicial restraint’ by telling plaintiffs that ‘life’ cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. ‘It cannot be presumed that any clause in the [C]onstitution is intended to be without effect.’” (pp.40-41)

The judgment included several important observations that might be helpful in future climate litigation:

  • As noted by other U.S. courts, with “each year, the impacts of climate change amplify and the chances to mitigate dwindle.” (p.48)
  • In the context of the climate crisis, the “judicial branch of government can no longer ‘abdicat[e] responsibility to apply the rule of law.’” (pp.48-49)
  • “[T]he climate crisis threatens our ability to survive on planet Earth. This catastrophe is the great emergency of our time and compels urgent action.” (p.2)
  • “[Y]oung people – too young to vote and effect change through the political process – are exercising the institutional procedure available to plead with their government to change course.”
  • “[L}awsuits like this highlight young people’s despair with the drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire emergency.” (p.3)
  • “Burning fossil fuels changes the climate more than any other human activity.”
  • Recent, conservative estimates indicate that the U.S. provides annual subsidies worth $200 billion to the oil and gas industry.
  • In the recent, ground-breaking trial decision in Held v. Montana (August 14, 2023), Judge Kathy Seeley ruled that “the state’s failure to consider climate change when approving fossil fuel projects was unconstitutional” (p.5). It was the first climate change trial in the U.S.  The evidence heard at the trial is summarized HERE, and the decision is discussed HERE.
  • “[C]ourts at home and abroad are capably grappling with climate change lawsuits seeking redress against both government and private actors on a range of legal theories, many novel.” (p.5)
  • As noted by a legal scholar,

     –  “the all-encompassing breadth of ongoing ‘irreparable harm’ sets the climate emergency apart from any other crisis, in terms of the human interests at stake.”

     –  “’Because no crisis is as ominous, imminent, and far reaching, the climate emergency must be considered sui generis,’ that is, ‘in a class of its own.’”

     –  “The legal approach must ‘rise to the emergency rather than repeat a failed past paradigm.’” (p.6)

  • As cited in an Australian appellate decision, Sharma v. Minister for the Env’t [2021] FCA 560 1, the “failure to curb climate change is ‘what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.’”
  • Government sources indicate that 94% of CO2 emissions in the U.S. is due to fossil fuel combustion. (p.13)
  • By 2012 “the U.S. was the largest producer of natural gas, and the second largest producer of coal and energy production.” By 2014 it “had become the largest producer of total petroleum in the world.”
  • With respect to the government’s early knowledge of the climate problem, in 1986 a Senate subcommittee reported that “there is a very real possibility that man – through ignorance or indifference, or both – is irreversibly altering the ability of our atmosphere to perform basic life support functions for the planet.” (p.17)

Despite Judge Aiken’s decision, the government’s eight-year campaign to sandbag the case is continuing – funded by taxpayers.  Within two weeks, namely on January 11, 2024, the DOJ filed a motion for a time extension to respond to the plaintiffs’ amended pleadings.  One week later it filed a motion to stay the proceeding pending yet another petition to the Ninth Circuit Court of Appeals for a writ of mandamus to delay or dismiss the case.  According to Our Children’s Trust, it is the fifth writ to be filed by the government with the Ninth Circuit Court of Appeals, bringing the total number of government writs to seven.  Meantime, massive volumes of GHG emissions from the U.S. continue to accelerate the climate crisis and harm those very same taxpayers.

The story seems far from over at this point.  The plaintiffs and their legal counsel continue to soldier on.  Stay tuned.