The environmental climate change case that has attracted the most attention, Juliana v. United States has come to an unceremonious end and all Americans should be concerned. On May 1, 2024, the Ninth Circuit Court of Appeals ordered, “The district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.”

Without regard to one’s perspective on the merits of the claims, the dismissal of this case after nearly a decade but before even the first witness was called, which was requested with apparent equal vigor by the Obama, Trump, and now Biden administrations make this dismissal troubling.

Commenced in 2015, twenty one plaintiffs, then ages 8 through 19, claimed that by failing to adequately respond to the threat of climate change the U.S. government has violated a “fundamental constitutional right to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and that, in so doing, Defendants dangerously interfere with a stable climate system required by our nation and Plaintiffs alike.”

In a prior challenge to this case by the government, in 2020 the Ninth Circuit held that the 21 Juliana plaintiffs lack Article III standing to bring such a claim.  The appellate court explained that the judicial branch could not mandate broad policy changes that are better left to the legislative and executive branches.

The court remanded with instructions to dismiss on that basis.  The District Court allowed an amendment of the complaint (.. this pleading is a great read), which narrowed the prayer for relief to a request for declaratory judgment against the U.S. government. The government again moved to dismiss.

This Court explained, in the prior appeal, when held that declaratory relief was “not substantially likely to mitigate the plaintiffs’ asserted concrete injuries.”  The Court reasoned to the contrary, it would do nothing “absent further court action,” which it held was unavailable. And then explained that Article III courts could not “step into the shoes” of the political branches to provide the relief the Juliana plaintiffs sought. Concluding because the request for declaratory relief was “not justiciable” the Court “remanded the case to the district court with instructions to dismiss for lack of Article III standing.”

While not garden variety, the theory of the case is not unique. Last year, the state court ruled in favor of the 16 youth plaintiffs in Held v. State of Montana, in a 103 page decision declaring that the state of Montana violated the youth’s state constitutional rights, including their rights to equal protection, dignity, liberty, health and safety, and public trust, which are all predicated on their right to a clean and healthful environment.

Globally, the cumulative number of climate change related cases has more than doubled since this case was filed in 2015, bringing the total number of cases to over 2,000, which includes claims of greenwashing. According to the Grantham Research Institute, it is tracking cases filed before courts in 43 countries from Australia to Germany and Pakistan to Papua New Guinea with the largest number against businesses in the U.S.

Scholarly critics of this court decision, from the left and the right, observe the U.S. Constitution establishes three separate but equal branches of government. The framers structured the government this way to create a system of checks and balances preventing any one branch of government from becoming too powerful. But this decision has the judicial branch self determining the courts to be inferior, certainly not coequal. A widely quoted law professor has chastised this appeals court observing that federal courts have in recent years tacked matters of immigration policy, health insurance, abortion rights, and more, but in this instance, the court found the capstone constitutional right of the people to petition the government for a redress of grievances does not extend to the environment and climate.

Quoting from the amended complaint itself, this result appears inconsistent with the U.S. Supreme Court’s holding in Obergefell v. Hodges, “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision making.”

In this instance, the Federal government filed a seventh Petition For Writ Of Mandamus seeking to preclude plaintiffs from getting to trial on their amended complaint by enforcing the earlier mandate of dismissal in response to which the District Court on April 19, 2024, filed a comprehensive Supplemental Order denying the government’s request for a stay and concluding “this Court recommends denying defendants’ petition for writ of mandamus.” But on May 1, 2024, the Ninth Circuit granted the government’s requested extraordinary remedy. The District Court dismissed the case after receiving that May 1st order.

The Ninth Circuit’s decision that environmental climate change is not justiciable is already having repercussions. On May 8, 2024, a Federal Court in California relying on the decision  dismissed a class action by minors against the U.S. EPA claiming they “have been harmed by climate change due to increased pollution and emissions, rising temperatures, extreme weather patterns, and wildfire exposure.”

The plaintiffs in Juliana could ask the full 11 judges of the Ninth Circuit to reconsider this decision, but in part, because a similar request was denied from the 2020 dismissal, such is considered unlikely. This second dismissal of the case by the Ninth Circuit is likely to be the final word in this storied case but only the beginning of climate change litigation pursued not only under constitutional theories but also under state tort law and under the umbrella of ESG causes of action.

___________________________

Please join us for our webinar “New Environmental Laws from the 2024 Maryland Legislative Session” on this Tuesday, May 14 from 9 – 9:30 am EDT presented by Stuart Kaplow. The webinar is complimentary, but you must register here.