Lawrence S. Ebner is founder of Capital Appellate Advocacy PLLC, a boutique law firm in Washington, DC that provides independent appellate advocacy for businesses and industries throughout the United States.*

On January 17, 2020, climate-change activists ran into a man-made constitutional roadblock called the separation of powers. A Ninth Circuit panel composed of three Obama appointees held in a 2 to 1 decision that the plaintiffs in the so-called “Kids’ Climate Suit” lack standing to proceed with their claim that the federal government has violated their supposed constitutional right “to a climate system capable of sustaining human life.” Juliana v. United States, Op. at 11.

Although sympathetic to the plaintiffs, the panel majority concluded that the “redress” they sought—“an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2’”— is “beyond [the court’s] constitutional power.” Id. The majority indicated that instead, “the plaintiffs’ impressive case for redress must be presented to the political branches of government,” i.e., the elected branches, Congress and the President. Id.