On 17 January 2020, the United States Court of Appeals for the Ninth Circuit issued its opinion on the Kelsey Rose Juliana v. United States case filled by 21 young citizens, an environmental organisation and a representative of future generations. By a majority of two judges, the Court dismissed the claim alleging that the government has violated claimants’ constitutional rights to life, liberty, property and the public trust doctrine by permitting, authorising, and subsidising fossil fuel use despite irreversible consequences regarding climate change.
This unfortunate outcome remind us that, despite a major victory for citizens concerned about climate change in the Urgenda case, there is still a long way paved with pitfalls to go.
The core issue at stake before the Court of Appeals was to determine whether an Article III court (of the US Constitution) could provide the plaintiffs the redress they sought, i.e. an order requiring the government to develop a plan to phase out fossil fuel emissions and draw down excess atmospheric CO2. To that question, the majority answered negatively.
Characterised injuries caused by government’s conducts
While the Court acknowledged that the government’s contribution to climate change is not simply a result of inaction but rather a consequence of active promotion of fossil fuel use through beneficial tax provision, permits for imports and exports, subsidies and so forth, judges nevertheless concluded that the legal claim at stake could not provide an Article III standing.
In fact, constitutional well established standards require (1) a concrete and particularised injury that (2) is caused by the challenged conduct and (3) is likely redressable by a judicial decision.
All judges agreed that the first two requirements were met. Some plaintiffs could demonstrate concrete and particularised injuries such as the forced leaving of home because of water scarcity resulting in separation from relatives. Furthermore, knowing that those injuries were caused by carbon emissions and that the US account for 15% of worldwide emissions, the causation link was also established.
However, the majority of judges considered that the last condition of redressability was not met.
A non redressable claim
Not all legal claims are redressable in federal court. It is well settled that redressability is established if the relief sought is (1) substantially likely to redress the injuries and (2) within the district court’s power to award.
The majority of judges found that while the claimants were seeking a declaration that the government violated the Constitution, this alone would not substantially mitigate their injuries. Moreover, judges considered that the request of 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 would not be sufficient to reduce global consequences of climate change. Hence, judges expressed their scepticism about whether the first redressability prong was satisfied.
The majority of judges added that even if the first criterion was met, the injunction requested to order, design, supervise, or implement the plaintiffs’ remedial plan fell outside the Court’s power. Judges argued that the decisions requested required consideration of “competing social, political, and economic forces, which must be made by the People’s elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.”
Hence, the Court concluded that despite its reluctance, “the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.”
Such conclusion was opposed by Judge Staton in a dissenting opinion.
Dissenting opinion of Judge Staton
Judge Staton started her argumentation recalling that climate change will “destroy the United States as we currently know it” and that the government “has directly facilitated an existential crises to the country’s perpetuity”. She also underlined that, as history has shown, telling claimants they should vindicate their rights to politicians will be interpreted as telling them they have no recourse.
Regarding the efficacy of the redress the Court could have provided, Judge Staton stressed that the right at stake was not to be entirely free from climate change, but rather to be free from irreversible and catastrophic climate change. Hence, the threshold to take into account was the point of no return beyond which the consequences of climate change would become irreversible.
Relying on the Massachusetts v. EPA case where the Supreme Court ruled that “a reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere”, Judge Staton concluded that the relief sought by claimants was likely to redress their injuries.
Regarding the power of the Court to grant the requested relief, Judge Staton considered that the issue at stake was not falling under the “political question doctrine” preventing courts from dealing with highly political issues. Furthermore, she added that “plaintiffs’ request for a “plan” is neither novel nor judicially incognizable. Rather, consistent with our historical practices, their request is a recognition that remedying decades of institutionalized violations may take some time”.
Judge Staton concluded that the inability to address emissions produced by private parties and foreign governments “speaks nothing to our ability to enjoin the government from exercising its discretion in violation of plaintiffs’ constitutional rights”.
A lost battle but…
Despite the unsatisfactory outcome, it is important to underline the positive elements of this decision. First, all judges, unanimously acknowledged both the urgency of the climate crisis, and the key role played by the government in the worsening of the situation. Second, the dissenting opinion of Judge Staton demonstrates that there is room for a potential favourable decision. Finally, this decision is not the final step of the case. Lead lawyer for the plaintiffs Julia Olson announced she would appeal the ruling, sending the case to the full Ninth Circuit.
To be continued!