sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

A new President will be inaugurated today.  Based on statements by President-Elect Trump and the views of many in Congress, changes are expected in how the federal government will address climate change, especially in the manner it regulates CO2 emissions.

However, at the same time that elected federal officials may navigate such a new path, a group of plaintiffs in a pending Oregon case urge the judiciary to dictate a far different approach to climate change.  Specifically, in Juliana, et al. v. United States, a group of plaintiffs have sued various federal agencies alleging that those agencies have willfully ignored the harm climate change causes them.  The plaintiffs claim that such inaction violates their constitutional due process rights, and runs afoul of a common-law theory known as the “public trust” doctrine.  They seek an order directing the federal defendants to develop a national remedial plan to reduce CO2 emissions.

CO2 emissions are generated across our nation’s economy.  Given the public debate surrounding how the United States should respond to climate change, it would be more than extraordinary for a single, unelected federal judge in Oregon, in this case US District Judge Ann Aiken, to take over and supervise the establishment of a plan to regulate CO2 emissions across the entire nation.  A similar case based on the public trust doctrine was dismissed in 2012.  See Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012) (finding no federal cause of action under public trust doctrine).* Hence, not surprisingly, the Obama Administration, joined by industry intervenors, filed a motion to dismiss the Juliana complaint.

Judge Aiken, however, in an unprecedented decision, denied the motion and allowed the lawsuit to proceed.  Juliana v. United States.  There are four essential elements to the court’s ruling.  First, the court refused to find the case presented a non-justiciable political question that should be left to the political branches of government.  According to Judge Aiken, “this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights.  That question is squarely within the purview of the judiciary.”  The court did acknowledge that if it were to find for the plaintiffs, it would be “compelled to exercise great care to avoid separation of power problems in crafting a remedy,” but nonetheless held that “speculation about the difficulty of crafting a remedy could not support dismissal at this early stage.”

Second, the court found that the plaintiffs had standing, holding that they met the requirements at the pleading stage by alleging 1) an injury in fact, 2) that is fairly traceable to conduct by the government, and 3) that is likely to be redressed.  The court rejected the government’s argument that the plaintiffs’ concern about climate change was a generalized grievance, finding the plaintiffs had alleged concrete and particularized injuries to each of the plaintiffs or their property that had been caused by flooding and drought allegedly due to climate changes.  It likewise found that the plaintiffs’ injuries were sufficiently traceable to the government, reasoning that the federal agency defendants have jurisdiction over sectors that produce much of the CO2 emissions in the US, which in turn produce a significant part of the total global emissions, which in turn causes climate change that has harmed plaintiffs.

Third, the court took the unusual step of holding the plaintiffs had asserted a valid substantive due process right and effectively created a new constitutional right—finding that a “right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”  The court did acknowledge that even if it recognized this substantive due process right, it still would not mean the government had a duty to act, unless the court found protecting the climate falls within the “danger creation” exception.  This exception, the court reasoned, allows a party to assert a right to substantive due process when government conduct knowingly places a person in peril and, with deliberate indifference, the government failed to act.  In Juliana, accepting the allegations of the plaintiffs as true, the court found that the plaintiffs had sufficiently pled those elements to survive a preliminary motion.

Lastly, unlike the Alec L. court, Judge Aiken also found plaintiffs had stated a valid federal common-law public-trust claim, as the federal defendants had allegedly violated their duties as trustees over the atmosphere, water, seas, seashores, and wildlife.  Among other arguments, the court rejected the contention that any federal common-law claim has been displaced by the multiple statutes enacted by the Congress, including the Clean Air Act and the Clean Water Act.  In American Electric Power Company, Inc. v. Connecticut, 564 U.S. 410 (2011) the US Supreme Court had held “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil fuel fired power plants.”  Id. at 424.  The Juliana court  brushed that aside and distinguished AEP, however, reasoning that the claims at issue there were nuisance claims, not public trust claims.

With that ruling, the case is now moving forward and bears close watching.  No schedule has been set for discovery and trial, as the parties have been directed to propose a schedule this month, but the Magistrate Judge has already indicated his intent to move the case quickly.  Moreover, it remains to be seen whether and how any efforts by the incoming Administration to change course on climate change policy, such as actions regarding the current EPA’s Clean Power Plan, could impact the litigation.  Regardless, it seems likely that this case will end up in the Ninth Circuit and the US Supreme Court.


*The decision was affirmed in an unpublished opinion and a request for certiorari to the Supreme Court was denied.