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After Youth Activists’ Surprising Win in Climate Change Litigation, What’s Next?

Wednesday, January 4, 2017

Benjamin Solomon-Schwartz

Public Interest Law Fellow

On November 10, 2016—just two days after Election Day—there was another surprising turn of events: a federal district court judge in Oregon handed a long-shot victory to a group of young activists suing the federal government over its history of action and inaction regarding fossil fuels and climate change. Denying the defendants’ motions to dismiss in a thorough and groundbreaking opinion, Judge Ann Aiken found there was a sufficient legal basis for the plaintiffs to pursue their constitutional and common-law claims for the case to proceed to the next litigation stage. Now, in the waning days of the Obama Administration, the case is entering uncharted territory. On top of the unprecedented nature of the case itself, the uncertainty regarding the presidential transition extends to the course this case may take and to its importance going forward.

Background

This case, Juliana v. United States, was brought by more than 20 youth plaintiffs from around the country; by EarthGuardians, an organization of youth environmental activists; and by climate scientist Dr. James Hansen, as guardian for future generations. The plaintiffs seek redress for the entire federal government’s failure to take action to prevent climate change and for its actions that have affirmatively fostered climate change. The plaintiffs claim that their constitutional rights, including their due process rights, and their rights under the common-law public trust doctrine, have been violated. They seek to require the government to implement a plan to remedy the harms resulting from climate change that are continuing to unfold.

The National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute intervened as defendants in the case. Both the industry intervenors and the federal defendants moved to dismiss. On April 8, 2016, Magistrate Judge Thomas M. Coffin, who is assigned to the case along with Judge Aiken, issued findings and recommended denying the motions to dismiss. After considering the defendants’ objections and after a further hearing, Judge Aiken adopted the magistrate judge’s recommendation and denied the motions to dismiss.

Judge Aiken’s Decision

In denying the motions to dismiss, Judge Aiken first rejected the defendants’ argument that the court lacked subject matter jurisdiction over the case because it posed a “political question.” Second, she concluded that the individual youth plaintiffs met the standing requirements based on the allegations in their complaint. Notably, she emphasized that, at the motion to dismiss stage, she is required to assume the truth of these allegations, whereas plaintiffs will be required to demonstrate standing in subsequent stages of the case based on evidence they present.

Discovering the Trees, Alessandro Pucci

Photo by Alessandro Pucci

Judge Aiken then turned to the substantive claims at stake. With respect to the substantive due process claims, Judge Aiken concluded that plaintiffs have a constitutional right “to a climate system capable of sustaining human life.” More specifically, she found that

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.

Therefore, she determined, plaintiffs had adequately alleged a due process violation with respect to affirmative actions taken by the U.S. government, such as leasing public lands for energy production. Judge Aiken also concluded that plaintiffs’ substantive due process claim based on the federal defendants’ failure to adequately regulate greenhouse gas emissions survived the motions to dismiss.

Finally, Judge Aiken examined the plaintiffs’ public trust claim. She concluded that the plaintiffs had adequately “alleged violations of the public trust doctrine in connection with the territorial sea” that run against the federal government and can be enforced in federal court. Therefore, Judge Aiken did not reach the novel question of whether there are public trust rights in the atmosphere that could be the basis of a legal claim.

In allowing the case to move to the next litigation stage, Judge Aiken emphasized that “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.” So far in this case, Judge Aiken has rejected the path of excessive caution, indicating that these novel claims should be adjudicated in the public forum of her federal courtroom.

What Happens Next

Following Judge Aiken’s ruling, the industry intervenors filed their Answer to the Amended Complaint. After the federal defendants do likewise—no later than January 13, 2017—the court will hold an additional scheduling conference on February 7, 2017, to establish a schedule for further proceedings. A period of discovery may be followed by motions for summary judgment and, in turn, a trial.

Meanwhile, in light of Judge Aiken’s ruling, the plaintiffs (and scholars like Columbia University’s Jeffrey Sachs) have urged the Obama Administration to engage in settlement talks—before the Trump Administration takes office. But there is no indication that either Administration will take their advice. In addition, it remains possible that the defendants will pursue an immediate, interlocutory appeal before the Ninth Circuit, but no steps have been taken publicly in that direction yet.

Whether the case proceeds in the trial court or goes up on appeal, the Department of Justice will change hands while it is pending. Any impact that the handover will have remains to be seen—as with many other unknowns regarding the next Administration. One thing, however, seems clear: if the incoming Administration does seek to withdraw from the Paris Agreement and/or unwind the Clean Power Plan, the claims in this case and other similar litigation will only become more important in the months to come.

 

UPDATE (as of Feb. 21, 2017): In January, the plaintiffs sought to compel the deposition of Rex Tillerson, the recently confirmed U.S. Secretary of State, in light of his alleged relationship with the industry intervenor-defendants during his tenure as CEO of ExxonMobil; this motion was denied by Magistrate Judge Coffin on the grounds that Tillerson is no longer affiliated with the intervenor-defendants. Separately, the plaintiffs sent the government and the industry intervenor-defendants a letter setting out the requirement that the defendants preserve materials related to the claims in the case, particularly information that the government and industry had about the dangers of climate change. If the court agrees with the scope of these preservation obligations, they may prevent removal, or at least require archiving, of information regarding climate change from official sources like the EPA website. At a February 7 status conference, Magistrate Judge Coffin then set several discovery deadlines and scheduled an additional status conference for March 8.

 

You can find additional reporting on this landmark case in the New Republic (“The Plucky Millennials Racing to Save the World From Donald Trump”), the New Yorker (“The Teen-Agers Suing Over Climate Change”), and the Washington Post (“Trump Could Face the ‘Biggest Trial of the Century’—Over Climate Change”), among other sources of news and commentary.

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