By: Patrick Parenteau, Professor of Law, Vermont Law School
What is most striking about the 9th Circuit’s split decision in Juliana v United States is not the result—dismissing the case on the ground that the court lacked the power to award the transformative relief the youth plaintiffs were seeking—but the utter dismay expressed by the judges at the existential threat facing the nation and the abject failure of the other branches of government to deal with it.
Writing for the majority, Judge Hurwitz began with a reference to the 1960’s rock anthem “On the Eve of Destruction” and observed: “The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer.” He noted that “the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions” and was actively promoting policies and actions that risked an “environmental apocalypse.”
In the end, however, the panel “reluctantly concluded” that the court was without power to order the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2” as plaintiffs requested. Judge Hurwitz bemoaned the fact that “the political branches of government have to date been largely deaf to the pleas of the plaintiffs and other similarly situated.” And he acknowledged that the “broad relief plaintiffs seek could well goad the political branches into action.” Nonetheless, he concluded that solutions would have to come from the “ballot box” not the courts.
In a scathing dissent District Judge Josephine Staton, sitting by designation, accused the majority of “throwing up its hands” and failing to honor its duty to enforce a “foundational constitutional guarantee of a climate system capable of sustaining life on earth.” Said Judge Staton: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.” She noted that plaintiffs were not seeking to be “entirely free” from climate change but rather recognition of “a constitutional right to be free from irreversible and catastrophic climate change.” She likened the relief being sought to the “desegregation orders and statewide prison injunctions the Supreme Court has sanctioned.” Even if the relief ordered was “just a drop in the bucket,” said Judge Staton, every drop matters because we are “perilously close to an overflowing bucket.” Citing Massachusetts v EPA, Judge Staton said relief that ameliorates the danger is sufficient for Article III purposes.
This passage in particular captures the profound angst in Judge Staton’s opinion:
Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?
So what happens now?
Lawyers for Our Children’s Trust (OTC) have vowed to seek an en banc review by the full Ninth Circuit. Such reviews are rarely granted. A majority of the 29 active judges would have to vote for review. The math is tough: 16 of the judges are Democratic appointees and 2 of those were the majority on the panel; 13 are Republican appointees with 10 appointed by President Trump. If en banc is granted, a panel of 11 judges would be chosen at random to rehear the case. It is hard to imagine a more favorable decision from a randomly drawn panel than the one issued by the three Obama judges. No question that the result is deeply disappointing, and the rationale offered is certainly debatable, especially the misplaced reliance on the Supreme Court’s recent decision in Rucho v. Common Cause, declining to take up the issue of partisan gerrymandering. But it would be wrong to conclude there is “nothing to lose” in seeking en banc review.
The panel decision does contain some positive findings. It recognizes that the youth plaintiffs met the first two prongs of the Article III standing analysis—injury in fact and causation linked to climate change. It rejected the government’s argument that plaintiffs’ sole remedy was through piecemeal lawsuits against discrete agency actions under the Administrative Procedure Act. It placed the blame for the perilous state of affairs squarely on Congress and the Executive Branch over five different administrations. And it stressed the moral imperative for action.
These gains could be lost as a result of an en banc decision that would vacate the panel’s decision and the remarkable dissent by Judge Staton. Worse, the full court could issue a new opinion cutting back even further on plaintiffs’ standing to bring climate change cases. We saw a preview of this in the Ninth Circuit’s decision in Washington Environmental Council v. Bellon holding that plaintiffs’ failed to meet either the causality or redressability prongs of standing in a case challenging the State of Washington’s failure to set limits on GHG emissions for a handful of small oil refineries in the state. Tellingly, a petition for en banc was denied in that case.
An even more daunting decision confronts the OTC lawyers should the en banc petition be denied. The litigator’s natural instinct is to seek Supreme Court review via a petition for certiorari. That would be a mistake in my view. Given the current makeup of the Court, and the prior signals it has sent in this case, it is difficult, to say the least, to find five votes to reverse the Ninth Circuit and order a trial. The Court has issued two Orders raising doubts about the case. In a July 30, 2018 Order putting a temporary stay on the case, Chief Justice Roberts noted that the “striking” breadth of plaintiffs’ claims “presents substantial grounds for difference of opinion” which was a pointed admonition to District Judge Ann Aiken to certify the case for an interlocutory appeal to the Ninth Circuit. Judge Aiken reluctantly complied, and, in a subsequent Order, the Court denied the government’s request for a writ of mandamus because “adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.” It is hardly surprising that the Ninth Circuit panel saw the handwriting on the wall and opted for dismissal rather than a reprimand.
The panel decision adopted the narrowest possible grounds for dismissal by ruling that plaintiffs had met two of the three tests for standing under Lujan v Defenders of Wildlife. On appeal the Supreme Court could do far more damage to the law of standing in climate cases. The holding in Massachusetts v EPA is based on a slender majority that included the late Justice John Paul Stevens and retired Justice Anthony Kennedy, both of whom have been replaced by far more conservative Justices Gorsuch and Kavanaugh. The track record of those justices in environmental cases should give anyone pause.
Chief Justice Roberts is now the swing vote on the Court. His views on standing are well known and not encouraging. In his dissent in Massachusetts v EPA, the Chief Justice (joined by Justices Alito and Thomas) acknowledged that “global warming may be a ‘crisis,’” even “the most pressing environmental problem of our time.” And he acknowledged that “it may be that governments have done too little to address it.” Nevertheless he firmly rejected petitioners standing to seek redress for the Government’s alleged failures:
I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts.
If a cert petition is filed, the best hope is that it would be denied. But it only takes four votes to grant review, and the fear is that the Solicitor General might urge the Court to take the case and revisit the Massachusetts v EPA ruling with potentially disastrous results for the many other climate cases that are pending in courts across the land, with more to come.
Juliana is already a landmark case that has thrown a bright light on the climate crisis and the almost criminal neglect of our national government. The OTC lawyers have performed brilliantly, marshaling the evidence and the scholarly arguments to justify judicial intervention while there is still time to avoid the climate cliff. The case ignited a youth climate movement that has spread around the globe and inspired successful cases in other countries, such as the recent decision of the Colombia Supreme Court ordering the government to stop deforestation in the Amazon.
The battle to save humanity from the looming catastrophe of runaway climate disruption is far from over. But perhaps it is time to turn the page and for now focus on the critical importance of the November elections. The ballot box is the next great battleground.