Juliana v US case must move forward to secure America’s future

A federal appeals court ruling dismissing the case Juliana v. United States—commonly known as the youth climate lawsuit—is founded on a logical incoherence: the Courts exist to redress grievances, yet the ruling says they are not empowered to do so.

The Constitution of the United States, the 1992 Climate Convention (a ratified treaty and so “the supreme Law of the Land” under Article 6 of the Constitution), the Clean Air Act, plus three Supreme Court rulings on the government’s responsibility to regulate climate-disrupting emissions, all require the federal government to protect Americans from avoidable danger stemming from climate-disrupting carbon pollution.

The two judges writing in the majority for the 9th Circuit, while attempting to justify dismissal of the Juliana v. United States case, admit that the federal government is not only failing to act, but is actively and disproportionately funding and incentivizing the development, commercialization and consumption of climate-disrupting fossil fuels.

Their ruling further recognizes that this affirmative investment in and support for climate-disrupting fossil fuels has happened continually through several decades during which the federal government had detailed conclusive evidence of the irreparable harm caused by this practice.

The ruling specifically finds that

The plaintiffs’ alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation.

It also recognizes that government policy is driving this harm and the political branches have improperly chosen not to defend the freedom and wellbeing of the plaintiffs.

The ruling also determined that, in order to make a finding on whether the complaint was redressable in US federal courts, it was necessary to

assume [the] existence [of a] substantive constitutional right to a ‘climate system capable of sustaining human life’…

This is potentially critical precedent, because:

    The logic of dismissal is so thin, it cannot hold up in any lawful adherence to the Constitution’s Article 3 mandate that federal judges serve only “during good Behaviour”.
    The Preamble to the Constitution states that the republic was formed “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
    The Ninth Amendment protects even rights not explicitly named, but which naturally attach to any person or to the obligations of the government’s service to the people.
    On substantive grounds, the court has not only “assumed the existence” of a right to climate protection; it has recognized it as grounded in the structure of Constitutional law.

Yet, the 2-1 majority opinion ruling argues that a declaration of unconstitutionality would not suffice to redress the harm. This argument is not only without merit, but is at the very least disingenuous. As in any federal court ruling where the court finds the political branches have operated beneath or beyond their Constitutional mandate, the the court would have to require action of the political branches to get in line with the Constitution.

The declaration of unconstitutionality is not, in itself, the redress; it is a foundation for what will ultimately be a chain of actions that would lead to the higher probability of a coordinated, responsible and legally grounded effort to resist and reverse climate disruption. That chain of actions need not be strictly mandated in order to achieve meaningful redress for the plaintiffs, though the court can require that the government cease incentivizing the destruction of future wellbeing.

The ruling inexplicably attempts to argue that if plaintiffs challenge unlawful action and seek “that the Nation’s laws are faithfully enforced”, such redress would not suffice to merit a hearing in federal court. That is, of course, the precise reason the federal courts exist.

Article 3 states plainly:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… to Controversies to which the United States shall be a Party;

The ruling notes that

The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions.

Such a plan would certainly suffice to redress the particular injury cited by the plaintiffs, which is the US government’s unjustifiable delivery of hundreds of billions of dollars in free assistance to an industry it knows is causing catastrophic irreparable harm to young people and future generations.

Not only would the US government, in such a scenario, no longer ignore its Constitutional responsibility to protect its people from avoidable danger, it would also, by virtue of existing laws, be required to extend that redress beyond its borders.

  • Instead of providing trillions of dollars to wars focused on capturing one or another segment of the world’s remaining reserves of fossil fuels, the US would—under both its domestic legal responsibilities and its commitment to international protections against wars of aggression—have to use its economic and geopolitical leverage to prevent such conflicts.
  • A verdict requiring the redress requested—including the cessation of free public assistance to companies engaged in active destruction of future climate stability—would also conjure a responsibility of the US government and of all who operate businesses within the United States to abide by the spirit and letter of the Foreign Corrupt Practices Act.
  • The political branches of the US government have ample authority to use their legislative and executive powers to institute controls against the providing of any free assistance by anyone to activities that are known to be harmful to innocent third parties, within the United States or elsewhere.
  • In other words, even the relatively narrow redress sought could in fact drive a global transition.

In her historic dissent, Judge Staton writes

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.”

Judge Staton goes on to note:

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.

Judge Staton also finds that:

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.

It is not premature to observe that the language, logic, and procedural integrity of Judge Staton’s dissent will stand the test of time. Her finding that the government has no lawful authority to impose on its people the destruction of its own stability is not only in line with the climate-related evidence and decades of environmental jurisprudence; it is also in line with the core (stated) purpose of the Constitution of the United States and the republic it established.

The Juliana v. United States case must continue to advance, despite the setback at the 9th Circuit, in order to:

establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.