The Right to a Stable Climate Is the Constitutional Question of the Twenty-first Century

A rally following a hearing in Kelsey Cascadia Rose Juliana v. the United States, which is better known as the climate kids’ lawsuit, in Portland, Oregon. Photograph by Robin Loznak / ZUMA

On June 4th, in a packed courtroom in Portland, Oregon, Judge Andrew Hurwitz, of the United States Court of Appeals for the Ninth Circuit, posed an unusual hypothetical question. “Assume that we have rogue raiders come across the Canadian border of the Northwest. They are kidnapping children of a certain age and murdering them,” he said. “The White House refuses to do anything and Congress doesn’t act. Can those people”—the terrorized families and communities—“go to court to compel action?” He was asking Jeff Clark, the lawyer representing the federal government, the defendant in the case. Clark replied, “My answer is no.”

Judge Hurwitz, along with Judges Mary Murguia and Josephine Staton, was presiding over oral arguments in Kelsey Cascadia Rose Juliana v. the United States, better known as the climate kids’ lawsuit. In August of 2015, the twenty-one plaintiffs, who then ranged in age from eight to nineteen years old, sued the Obama Administration and various federal agencies, alleging that the government’s policies on fossil fuels advanced catastrophic climate change and therefore violated the right, guaranteed to them under the Fifth Amendment, that no one shall be “deprived of life, liberty, or property, without due process of law.” In other words, as Judge Hurwitz’s hypothetical suggested, their suit is an attempt to compel action from a government that is ignoring (and furthering) a life-threatening danger that they face. Since then, the case has ricocheted through the courts, gaining strength as urgency around climate change has increased and the Trump Administration has continued to deny that a problem exists. (“The climate goes both ways,” President Trump said in London, last week. “I believe that there’s a change in weather and I think it changes both ways.”) Instead, the Administration has aggressively promoted and expanded the use of fossil fuels, recently announcing that natural gas would be rebranded as “freedom gas.”

Hurwitz asked his question at the start of the hearing, establishing the stakes and reflecting the gravity with which the judges were weighing the plaintiffs’ claims. It pointed to an issue at the heart of the case, and at the heart of most climate litigation—the separation of powers. “The central issue the Ninth Circuit is grappling with is what is the role of the courts vis a vis Congress and the executive branch,” Michael Gerrard, a professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change Law, wrote me in an e-mail. “If a building is on fire and all the firefighters are off at a convention, can the neighbors break into the firehouse and run the firetrucks themselves? Or do they have to wait for permission, while the building burns down? Likewise, if the planet is on fire and Congress and the Administration are checked out, can the courts act on their own?”

Since most major environmental statutes date to the nineteen-seventies, and Congress has not been able to pass a single major environmental law since 1990, the Environmental Protection Agency, other federal agencies, and the courts have been forced to address current problems with laws that are decades old. (The main problem now is that the Senate will not act. In early May, as the House prepared to vote on a new bill, the Climate Action Now Act, which would force the Trump Administration to remain in the Paris climate agreement, the Senate Majority Leader, Mitch McConnell, said that it would “go nowhere.”) Once Trump was elected, and federal agencies no longer had a mandate to address climate change, the courts became the only branch of government where action might be possible. But, in the absence of adequate climate-policy laws, the courts must find their right to act in the Constitution. Two days after Trump’s election, a federal judge for the District of Oregon, Ann Aiken, found that right and issued a major decision, denying the government’s motion to dismiss the Juliana case. “Where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation,” Aiken wrote. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” A trial date was set for early last year, then postponed until last fall. The government, meanwhile, turned to the Supreme Court, asking the Justices to prevent the trial from going forward. In November, they declined to do so, determining that the government needed to bring its objections before the Ninth Circuit first. The Ninth Circuit now must decide whether the case can, finally, proceed to trial.  MORE

 

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