By Bryce Wachtell (PO ’21)
In 2015, over twenty adolescents between the ages of 11 and 21 took the initiative to sue the federal government for its role in climate change. The story received international attention, in large part because of the legal standing of the plaintiffs. Three years after it first made headlines, the case, Juliana vs. United States et al., has yet to undergo a formal trial. However, it has brought to light a new legal principle of “Atmospheric Trust Litigation” that—whether legitimate or not—has interrogated traditional readings of constitutional rights and forced legal scholar to consider the government’s obligation (or lack thereof) in climate change mitigation.
The case hinges on one key approach by the plaintiffs; when the lawsuit first surfaced in U.S. District Court for Oregon, the suit claimed the federal government’s culpability in the destabilization of our climate system made it responsible for a violation of the plaintiff’s fifth amendment rights to life, liberty, and property. That the fifth amendment might encompass a right to a clean environment has not yet been considered in a U.S. court.
Though the suit was initially filed years ago, its grand accusations and reliance on novel legal theory has forced it into legal limbo. Several petitions for writ of mandamus have been filed by the federal government, attempting—unsuccessfully, as of now—to undermine the legal standing of the plaintiffs for their lack of immediate impact from transgressions.
Though the plaintiffs assert they they are correctly interpreting longstanding rights, the defendants argue that the suit is an attempt to circumvent the normal political process and leverage the courts to enact wide sweeping environmentally-friendly policy. As such, the federal government has made every effort to dismiss or delay the trial.
In seeking a stay on the trail last July, Solicitor General Noel J. Francisco wrote, “In contrast to the obvious harms to the government [if the trail were to proceed], respondents can make no credible claim of imminent, irreparable harm. Their alleged injuries stem from the cumulative effects of CO2 emissions from every source in the world over decades; whatever additions to the global atmosphere that may somehow be attributed to the government over the time it takes to resolve the pending mandamus petition are plainly de minimis.”
In response to the stay, the plaintiffs posited that there was no hardship suffered by the government in undergoing the trial. The response read, “Plaintiffs’ exposure to dangerous climate change is today causing them concrete and particularized injuries that vary according to their particular locations, interests, and circumstances…” But the plaintiffs went further, likening a stay on the trial to keeping a child in a dangerous foster home because they have already been there for years—just because it is the current status quo does not mean it is legal.
The stay was not granted, but the court did concede that the breadth of the plaintiff’s claims were “striking.” The legacy of the suit is still very much disputed; the success of its claims relies entirely on the establishment of a generous interpretation of the fifth amendment to encompass a right to a clean climate.
As the federal government argued on appeal, “The court has determined that this amorphous and sweeping right is judicially enforceable, permitting the court to dictate and manage—indefinitely—all federal policy decisions related to fossil fuels, energy production, alternative energy sources, public lands, and air quality standards. To say the least, and by the district court’s own admission, this ruling is unprecedented.”
In their original suit filed in Oregon, the young activists wrote, “Fundamental to our scheme of ordered liberty, therefore, is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2. Plaintiffs hold these inherent, inalienable, natural, and fundamental rights.” Three years later, the battle to establish that fact rages on—more acrimonious and complex than ever.