Featured Expert Contributor—Environmental Law and Policy

Jim Wedeking is Counsel to Sidley Austin LLP in the firm’s Washington, DC office. The opinions expressed are those of the author and do not necessarily reflect the views of Sidley Austin LLP or its clients.

A pair of decisions all but ended a campaign to have federal courts declare a right to a world free from climate change. These decisions will likely close out a nearly decade-long effort by a group of lawyers, using children as plaintiffs, to re-shape environmental and civil rights law, as well as the constitutional separation of powers.

The Juliana Campaign

In August 2015, a group of lawyers filed a complaint on behalf of 21 teenagers or minors, led by Kelsey Cascadia Rose Juliana, and all future generations (represented by their self-declared “guardian,” James Hansen) against then-President Barack Obama and virtually every cabinet-level federal agency. ¹ The complaint alleged that the United States government had acted irrationally in either promoting, or tolerating, the use of fossil fuels which caused climate change. ² In turn, climate change injured the plaintiffs, and will injure future generations, through diminished recreational activities; harm to spiritual and cultural practices via wildfires, drought, declining snowpack, and beetle infestations; fear that heat waves will diminish farming revenues; aggravated allergies and asthma; limiting the ability to eat seafood; and fear that New York and Los Angeles will be enveloped by rising sea levels, among many other things. ³

They alleged such injuries violated (1) the substantive due process clause, as burning fossil fuels harms the plaintiffs’ fundamental rights to life, liberty, and property, as well as a right to a “stable climate system;” (2) the equal protection clause because children and future generations should be viewed as a protected class who have been discriminated against and deprived of their fundamental rights by “the political process;” (3) the Ninth Amendment as policies allowing the use of fossil fuels infringe on “the implied right to a stable climate system;” and (4) a previously unrecognized public trust doctrine that purportedly imposes a constitutional requirement (cobbled together from the Ninth and Tenth Amendments, as well as the Vesting, Nobility, and Posterity Clauses) for the federal government to provide a “life-sustaining climate system” for “present and future generations.” ⁴ In addition to declaratory relief, the plaintiffs demanded that the court enjoin the United States government from further purported constitutional violations; declare Section 201 of the Energy Policy Act, authorizing natural gas exportation, to be unconstitutional; invalidate Department of Energy authorizations for the Jordan Cove Energy liquified natural gas facility as unconstitutional, create a “consumption-based inventory of U.S. CO₂ emissions;” and order the implementation of “an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO₂ so as to stabilize the climate system.” ⁵

Although the action presented numerous bases for dismissal, including a lack of standing⁶ and a failure to state a constitutional claim, ⁷ the district court refused to dismiss the case. Instead, it claimed to recognize a new right to a stable climate and a constitutional law public trust doctrine obliging the federal government to conserve the atmosphere and territorial seas and proclaimed that “the world has suffered” long enough from a “cautious and overly deferential” judiciary. ⁸ After a series of unusual discovery disputes and a change in Presidential administration, the United States sought a stay of the litigation and certification from the district court for an interlocutory appeal of its refusal to dismiss the case. ⁹ The district court, predictably, denied certification. ¹⁰ The United States petitioned the Ninth Circuit for a writ of mandamus, arguing that it should order the district court to dismiss the case as the proceeding violated the separation of powers and it was clear error to hold that the plaintiffs had standing, that their claims involved fundamental rights, and that a public trust doctrine could be created and enforced against the federal government. ¹¹

The Ninth Circuit stayed discovery in what would be the climate change trial of the century and ordered the plaintiffs to submit a response. ¹² After extensive briefing and oral argument, the Ninth Circuit denied the petition as there were still ample opportunities for the United States to resolve legal and discovery disputes through normal appeals processes and there was no clear controlling precedent contradicting the district court’s holdings. ¹³ Back before the district court, and facing both daunting discovery demands and an October 2018 trial date, the United States moved for judgment on the pleadings¹⁴ and to stay discovery. ¹⁵ The court denied a stay of discovery, ¹⁶ prompting a second petition for a writ of mandamus ¹⁷ and a petition for a stay filed directly with the Supreme Court. ¹⁸ The Ninth Circuit, again, denied the United States’ petition. ¹⁹ But, although the longest of long-shots—and not immediately successful—the Supreme Court petition began to change the case’s outlook.

In denying the petition, the Supreme Court did note that the “breadth of respondents’ claims is striking … and the justiciability of those claims presents substantial grounds for difference of opinion.” ²⁰ After additional discovery skirmishes and with trial imminently approaching, the United States again sought relief from the Supreme Court and asked the district court to stay the case. ²¹ The district court almost immediately denied the stay and largely denied both the United States’ motion for judgment on the pleadings and its request for an interlocutory appeal, teeing the case up for trial. ²²

The Supreme Court quickly stayed the trial pending consideration of the United States’ motion. ²³ However, this would only buy the United States a few weeks of time as the Supreme Court again denied relief. But, again, it sent a message. ²⁴ The Ninth Circuit previously denied the United States’ petitions without prejudice and that “court’s basis for denying relief rested, in large part, on the early stage of litigation” and the prospect of favorable rulings from the district court. ²⁵ “Those reasons are, to a large extent, no longer pertinent” as trial would start imminently. ²⁶ The United States took the hint, filing its third petition for a writ of mandamus with the Ninth Circuit a few days later²⁷ while asking the district court to reconsider its prior denial of a certification for interlocutory review. ²⁸ The district court finally relented, certifying the case for interlocutory appeal and staying the trial. ²⁹

Fourteen months later, a divided Ninth Circuit reversed the district court, holding that the plaintiffs lacked Article III standing. ³⁰ Although the court found that the district court correctly held that the various plaintiffs asserted concrete and particularized injuries, and that those alleged injuries were caused by the United States’ actions, it “[r]eluctantly” determined that the district court could not redress those injuries. ³¹ A declaration that the United States is violating the Constitution would not alleviate any of their asserted injuries and the court rejected the notion that “benefit[ting] the plaintiffs psychologically” satisfied redressibility under Article III. ³² Only injunctive relief could redress the asserted injuries and this meant allowing the district court to “not only enjoin the Executive from exercising discretionary authority expressly granted by Congress,” such as issuing leases for coal mining, but also enjoining “Congress from exercising power expressly granted by the Constitution over public lands.” ³³ Further, the plaintiffs wanted more than an order for the federal government to stop doing things authorized by law. They demanded “no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world” through “nearly complete decarbonization.” ³⁴ Although the Ninth Circuit was overtly sympathetic to the plaintiffs—lamenting that such “complex policy decisions [are] entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches”—it ultimately conceded that the Constitution puts these matters beyond the control of a single district court judge. ³⁵ Importantly, the Ninth Circuit majority provided clear instructions: “we … remand this case to the district court with instructions to dismiss for lack of Article III standing.” ³⁶ Yet, despite the clear directive to dismiss the Juliana case, what should have been dead would not yet die.

After the Ninth Circuit declined to rehear the case en banc, plaintiffs moved to amend their complaint by removing the request for a carbon remedial plan and argued that declaratory relief alone could redress their injuries. ³⁷ After more than two years of sporadic briefing, notices of supplemental authority, and responses to those notices, the district court granted the motion. ³⁸ Asserting that the Supreme Court’s decision in Uzegbunam v. Preczewski abrogated the Ninth Circuit’s mandate to dismiss the case, the district court agreed that a declaration could partially redress plaintiffs’ alleged injuries and ordered the parties to proceed to trial. ³⁹ The United States filed its fourth petition for a writ of mandamus with the Ninth Circuit asking it to, once again, dismiss the litigation. ⁴⁰

The Genesis B. Campaign

Nearly three years after the Ninth Circuit directed the U.S. District Court for the District of Oregon to dismiss the Juliana case, many of the same lawyers representing the Juliana plaintiffs filed suit in the U.S. District Court for the Central District of California. That suit, Genesis B. v. United States, raised similar claims on behalf of a new group of minors. This time, EPA was the only agency defendant and plaintiffs alleged, among other things, that EPA is responsible for administering the sovereign’s control over air and waters (a different formulation of the Juliana federal public trust theory), intentionally discriminated against children by discounting the future costs of regulations and failed to act upon the best scientific information regarding climate change. ⁴¹ One additional difference is that the plaintiffs sought only declarations that the EPA’s conduct was unconstitutional in various ways, ⁴² not the elaborate injunctive relief requested in the Juliana litigation.

EPA moved to dismiss citing, among other reasons, that the Ninth Circuit’s decision in Juliana already established that these alleged injuries could not be redressed by declaratory relief. ⁴³ Unsurprisingly, plaintiffs disagreed. They claimed they would find relief in the resolution of “a real question of conflicting constitutional interpretation,” that declaratory judgments are really no different than nominal damages, and that the Juliana decision’s discussion of the issue was merely dicta discussing past injuries, not the alleged ongoing injury inflicted by EPA. ⁴⁴ However, a few days after oral argument on the motion to dismiss, ⁴⁵ the Ninth Circuit settled these questions.

The Last Juliana Opinion  

The Ninth Circuit, without any need for oral argument, granted the United States’ petition for a writ of mandamus, clarifying that its prior discussion on declaratory judgments was not dicta and making clear its prior order: “Our mandate was to dismiss.” ⁴⁶ The court elaborated that, contrary to the district court’s reasoning, “[n]either the mandate’s letter nor its spirit left room for amendment” and that “Uzuegbunum was a damages case which says nothing about the redressability of declaratory judgments. Damages are a form of retrospective relief. Declaratory relief is prospective.” ⁴⁷ The Ninth Circuit’s final instruction to the U.S. District Court for the District of Oregon was “to dismiss the case forthwith for lack of Article III standing, without leave to amend.” ⁴⁸ The district court complied on that same day. ⁴⁹

Within a week, the Central District of California dismissed the Genesis B. suit. ⁵⁰ Jumping straight to the question of redressibility, it held that “Juliana is on all fours with this action” as declaratory relief “‘is unlikely by itself to remediate their alleged injuries absent further court action.’” ⁵¹ No declaration of unconstitutionality or discrimination “is substantially likely to remedy the injuries to Plaintiffs’ bodies, their homes, and their daily lives.” ⁵² The Ninth Circuit’s mandamus order seemed to dispose of the various attempts to distinguish Juliana and assert that Uzuegbunam changed the law of redressibility. ⁵³ The district court, however, did leave the door open just a crack. Despite its own skepticism, the district court noted EPA’s failure to oppose the amendment of the Genesis B. plaintiffs’ complaint to somehow demonstrate redressibility. ⁵⁴ Plaintiffs may file a first amended complaint by May 20, 2024. ⁵⁵ Although plaintiffs’ lawyers will likely amend their complaint, there appear to be no viable theories of redressibility remaining.

Notes

1. Complaint, Doc. 1, Case No. 15-cv-01517 (D. Or. Aug. 12, 2015) ¶¶ 16-92, 98-130.
2. See id. at ¶¶ 1-7.
3. Id. at ¶¶ 18, 21, 26, 28, 47.
4. Id. at ¶¶ 277-79, 291-95, 303-04, 308-10.
5. Id., Prayer for Relief at pp. 94-95. In its First Amended Complaint, Doc. 7 (D. Or. Sept. 10, 2014), the plaintiffs added claims related to the planned Coos Bay liquified natural gas facility and similar asked that its federal authorizations be invalidated as unconstitutional. Id. ¶¶ 1, 9, 22; Prayer for Relief ¶ 4.
6. See Federal Defendants’ Memorandum of Points and Authorities in Support of Their Motion to Dismiss, Doc. 27-1 (Nov. 17, 2015) (plaintiffs allege only a generalized grievance, fail to allege causation, and their purported injuries cannot be redressed by the court while “future generations” have no standing at all); Memorandum in Support of Intervenor-Defendants’ Motion to Dismiss, Doc. 20 (Nov. 12, 2015) (non-justiciable federal question without judicially manageable standards).
7. See generally Doc. 27-1 (no constitutional right to a stable climate; children are not a discrete minority that can assert an equal protection claim, the public trust doctrine is a state law doctrine with no federal counterpart); Doc. 20 (any federal common law public trust doctrine has been displaced by statute).
8. Opinion and Order, Doc. 83 (Nov. 10, 2016) at 52.
9. Motion for Leave to Appeal Order Denying Motions to Dismiss, Doc. 120 (Mar. 7, 2017); Motion for Stay, Doc. 121 (Mar. 7, 2017).
10. Doc. 172 (June 8, 2017).
11. Doc. 177 (June 9, 2018); see also, Petition for Writ of Mandamus, In re: United States of America, Case No. 17-71692, Doc. 1 (9th Cir. June 9, 2017).
12. Case No. 17-71692, Doc. 7 (July 25, 2017) (stay of district court proceedings); Doc. 8 (July 28, 2017) (order for plaintiffs to file an answer).
13. In re United States, 884 F.3d 830 (9th Cir. 2018).
14. Doc. 195 (May 9, 2018).
15. Defendants’ Motion for a Protective Order and For a Stay of All Discovery, Doc. 196 (May 9, 2018); see also id. at 6-7 (summarizing extensive discovery requests for information dating back to the 1960s and demands for admissions on opinions of potential future climate change impacts).
16. Order, Doc. 300 (June 29, 2018).
17. Notice of Filing of Petition for Writ of Mandamus, Doc. 308 (July 5, 2018).
18. Notice of Filing of Application to the Supreme Court for Stay, Doc. 321 (July 17, 2018); see also United States of America v. United States District Court for the District of Oregon, Application for a Stay Pending Disposition by the united States Court of Appeals for the Ninth Circuit of a Petition for a Writ of Mandamus to the United States District Court for the District of Oregon and Any Further Proceedings in this Court and Request for an Administrative Stay, Case No. 18A65 (July 17, 2018).
19. 895 F.3d 1101 (9th Cir. 2018).
20. 139 S. Ct. 1 (2018). Notably, the standard for an interlocutory appeal certification includes cases involving “a controlling question of law as to which there is substantial ground for difference of opinion.” 28 U.S.C. § 1292(b).
21. Notice of Filing Petition for Writ of Mandamus Requesting a Stay of District Court Proceedings Pending Supreme Court Review, Doc. 365 (Oct. 12, 2018).
22. See Doc. 374 (Oct. 15, 2018) (denying stay); Opinion and Order Doc. 369 (Oct. 15, 2018) (denying United States’ motion except for its request to dismiss the President as a defendant and plaintiffs’ Ninth Amendment claim).
23. Order, Case No. 18A410 (Oct. 19, 2018).
24. 139 S. Ct. 452 (2018).
25. Id.
26. Id.
27. Doc. 420 (Nov. 5, 2018).
28. Doc. 418 (Nov. 5, 2018); see also Doc. 419 (Nov. 5, 2018) (asking for a stay of litigation).
29. Doc. 444 (Nov. 21, 2018); Doc. 445 (Nov. 21, 2018).
30. Juiliana v. United States, 947 F.3d 1159 (9th Cir. 2020).
31. Id. at 1165.
32. Id. at 1170.
33. Id.
34. Id.
35. Id. at 1171-72. Note, however, that the dissenting judge, comparing the situation to “an asteroid … barreling toward Earth” and Brown v. Board of Education, found no impediment to investing the judiciary with control over nearly all of the country’s major policy decisions. Id. at 1175, 1188-89, 1191 (Staton, J., dissenting).
36. Id. at 1175.
37. Plaintiffs’ Motion for Leave to Amend and File Second Amended Complaint for Declaratory and Injunctive Relief, Doc. 462 (Mar. 9, 2021) at 2-4, 9-10.
38. Opinion and Order, Doc. 540 (June 1, 2023).
39. Id. at 2 (citing Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021)).
40. Petition for a Writ of Mandamus and Opposed Motion for a Stay of Proceedings, Case No. 24-684, Doc. 1.1 (9th Cir. Feb. 2, 2024).
41. See generally, Complaint for Declaratory Relief, Genesis B. v. The United States Environmental Protection Agency, Case No. 23-cv-10345, Doc. 1 (C.D. Cal. Dec. 10, 2023).
42. Id. at 98-100.
43. Defendants’ Notice of Motion and Motion to Dismiss Complaint, Doc. 36 (Mar. 15, 2024) at 8-11.
44. Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss, Doc. 37 (Apr. 8, 2024) at 9-13.
45. See Doc. 46 (Apr. 29, 2024) (hearing on motion to dismiss).
46. Order, Doc. 24.1 (May 1, 2024, 9th Cir.) at 3.
47. Id. at 4 (citations omitted).
48. Id. at 4-5.
49. Case No. 15-cv-1517 (D. Or.), Doc. 601 (May 1, 2024).
50. Case No. 23-cv-10345 (C.D. Cal.), Doc. 50 (May 8, 2024).
51. Id. at 5 (quoting Juliana v. United States, 947 F.3d 1149, 1170 (9th Cir. 2020) (emphasis deleted)).
52. Id. at 6 (internal quotation omitted).
53. Id. at 8.
54. Id. at 8-9.
55. Id. at 9.