Juliana and the Future of Climate Litigation

Legal Planet: Environmental Law and Policy 2020-01-17

Ninth Circuit judges threw out the Juliana litigation this morning.  They basically said, though in more legalistic language, that you can’t get the Green New Deal by court order. It was wrong for the Supreme Court to step in at the last minute to put the trial on hold, rather than giving the plaintiffs their day in court. But ultimate result wasn’t surprising, given the unprecedented, sweeping ruling that the plaintiffs were requested.

I don’t blame the plaintiffs for giving this a try — it was a long-shot that could have been a game changer.  But at the end of the day, it asked judges to take a sweeping new rule as overseer of federal energy policy. It’s not surprising the court declined.

Now to the technicalities: The Ninth Circuit majority approached case in terms of standing doctrine, ultimately concluding that the plaintiffs lacked standing.  To have standing, a plaintiff must show that a court could provide some kind of real redress.  The court went astray in thinking that only a dramatic impact on global carbon emissions would count as redress.  I agree with the dissenter that this is a misreading of Massachusetts v. EPA.  Correspondingly, I think that for standing purposes the court should have looked to some of the smaller, more limited remedies that might have been available for purposes of standing. However, I can see why the majority felt that nickel-and-dime remedies would make no sense given that the plaintiffs’ complaint covered the full sweep of government policies.

The court understandably had qualms about  the core remedy sought by the plaintiff: an order that the government come up with a plan for dramatic reduction or elimination of carbon emissions.  It’s very hard to see how that would accomplish anything unless the court exercised oversight to ensure that the plan was aggressive enough, feasible, and implemented on schedule. That would require constant supervision of hundreds of government actions to ensure they were properly conducted and on schedule.

The dissent analogized this case to Brown v. Board of Education. Under Brown, judges had to determine whether individual school districts were illegally segregated and devise a remedy accordingly.  If Thurgood Marshall, who steered desegregation litigation, had followed the path of the Juliana plaintiffs, he would have argued that U.S. policy as a whole had failed to address racial quality, and he would have asked the court to require a national plan to eliminate discrimination.  That would not have been a winning strategy.

The plaintiffs legal theory had much the same problem. They claimed that the federal energy policy taken as a whole violated their constitutional rights.  But courts are in no better position to make decisions about federal energy policy taken as a whole than about racial inequality taken as a whole. So the outcome was not surprising — if anything, the surprise was that the district judge and one judge on the panel were willing to take that step.

This is not to say that the hard work of the plaintiffs’ lawyers was wasted — and hey, it was worth a try since you can never be certain how litigation will turn out. And even with this loss, there were some real benefits to the case.   The majority and dissenting opinions contain remarkably strong language about the dangers of climate change and the urgent need for action.  That wouldn’t have happened without this lawsuit, and it may help change the way other judges think about the problem. The lawsuit also succeeded brilliantly as an exercise in public mobilization. In the long run, that mobilization is crucial.  I’m sure the smart creative lawyers who brought the case will have more new ideas in store for us. 

 

 

 

 

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