Climate Change and the Constitution: The Right to a Clean Environment   

Tweet

Climate change is an issue that has recently come to the forefront of discussion in both the United States and the rest of the world.  Commonly, climate change is debated through the lens of politics, social policy, or economic principles.  The legal field has not yet delved as deeply into the issue.  Until recently, many have hoped to combat climate change through legislation and lifestyle changes.   However, individuals, activists, and other groups around the country have now turned to the courts to compel governmental action on climate change.

In 2015, a youth environmental activist group, Our Children’s Trust (“Plaintiffs”), sued the United States government (“Defendant”) in federal court in the District of Oregon. In Juliana v. United States(one of the most closely watched climate change cases), the Plaintiffs are a group of children and teenagers who—at the time the complaint was filed—were between the ages of eight and nineteen. These children were joined by Earth Guardians, another youth environmental activist group, and Dr. James Hansen, who acts as a guardian for future generations.

In their complaint, Plaintiffs allege that the United States government has been well-aware of the dangers associated with the burning of fossil fuels and its effects on the environment; yet they have “permitted, encouraged, and otherwise enabled” the drastic increase in the atmospheric concentration of carbon dioxide.  Furthermore, Plaintiffs explain that the unprecedented levels of carbon dioxide in the atmosphere are not only currently injuring the Plaintiffs but will continue to injury future generations.

Plaintiffs set forth a multitude of theories in which they seek remedy from the courts.  Notably, Plaintiffs assert a public trust claim and a state-created danger claim relating to the injuries incurred from the effects associated with climate change. Yet, in a unique argument, they also claim that the government’s failure to act on climate change violates their rights to life, liberty, and property without due process of law.   Furthermore, Plaintiffs assert that there is a fundamental, unenumerated right to a sustainable climate found under the Due Process Clause of the Fifth Amendment. Thus, by failing to enact any meaningful legislation to combat the present and future impacts of climate change, Plaintiffs allege that the government has infringed upon their constitutional rights.  Before trial, Defendant and several intervenors filed a motion to dismiss the case.

In an unprecedented ruling, the district court agreed with Plaintiffs and denied all motions to dismiss.  In her opinion, Judge Ann Aiken stated, “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”  Juliana, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016).  Judge Aiken compared the foundational value of this right to the right to same-sex marriage outlined in Obergefell v. Hodges, the Judge noting that—as marriage is the foundation of family—a stable climate is “quite literally the foundation ‘of society, without which there would be neither civilization nor progress.’” Aiken monumentally held that a stable climate is the baseline for society, and without such, other rights would be infringed.  The ruling was promptly appealed.

In its past case law, the Supreme Court of the United States has found fundamental, unenumerated rights exist under the Due Process Clause of the Fifth Amendment of the Constitution.  As outlined in McDonald v. City of Chicago, to determine whether an unenumerated right is fundamental, courts decide whether the purported right is either fundamental to our scheme of ordered liberty, or whether it is deeply rooted in the history and tradition of the United States.  Courts must use “utmost care” when determining whether a right is protected by the Due Process Clause, as stated in Washington v. Glucksberg.

The case of Juliana already has a long procedural history. In about four years of litigation, there have been several interlocutory delays, including a ruling from the Supreme Court.  Substantively, Judge Aiken issued her decision in 2016, and defense counsel subsequently appealed.  The parties gave oral arguments before the Ninth Circuit Court of Appeals in June 2019. As of mid-October 2019, the Ninth Circuit has not yet issued their opinion.  This article will not detail the procedural history of the case, but rather focus on the constitutional issues—as argued by the parties— of whether Plaintiffs have standing to initiate this action, as well as both parties’ arguments regarding an unenumerated right to a sustainable environment.

 a.   Standing

One crucial issue before Judge Aiken was whether Plaintiffs even had standing to bring this case to court. Without standing, Plaintiffs’ claims would not be considered or given the attention they are now receiving.

To establish standing, a plaintiff must show injury in fact (an injury that is concrete and particularized, and actual or imminent), a causal connection between the injury and the defendant’s conduct, and that the injury is likely to be redressed by a favorable court decision.

Judge Aiken struggled with each facet of standing.  Ultimately, she found that Plaintiffs do have standing to initiate this action.

1.  Injury in fact

Judge Aiken notes in her opinion that standing in environmental cases requires an injury to the plaintiff specifically, and general damage to the environment will not suffice.  Despite this, Judge Aiken ruled that Plaintiffs successfully illustrated personalized and concrete injuries by presenting their personal stories of floods, wildfires, and other environmental phenomena that have negatively impacted their lives.  Plaintiffs supported their assertions with scientific date showing how the named environmental disasters are created or strengthened by climate change.

Further, Judge Aiken stated that Plaintiffs have established imminency of their injuries.  Plaintiffs cite ocean acidification, rising sea levels, and a plethora of other effects from climate change as injuries currently occurring and likely to continue to occur.  Judge Aiken deemed this argument convincing, and thus, Plaintiffs satisfied this factor of standing.

2.  Causal connection

A plaintiff’s injury must be “fairly traceable” to a defendant’s actions, and not to the actions of a third party, in order to establish a causal connection.  Plaintiffs here argue that Defendant has the ability to limit the use of fossil fuels and stymie the production of greenhouse gases yet choose not to.  Further, according to Plaintiffs’ brief, Defendant knowingly encourages and promotes the use of a fossil fuel-based energy system.  Thus, Defendant’s affirmative acts encourage the production of greenhouse gases, and the production of such can be traced back to Defendant.

Despite referring to Plaintiffs’ argument as “conclusory,” Judge Aiken sided with Plaintiffs and determined that this argument satisfies the causation prong.  However, Judge Aiken expressed concern regarding Plaintiffs’ ability to prove this causal connection, should the case go to trial.

3.  Redressability

The final factor of standing analysis is whether a decision in a plaintiff’s favor would redress the purported injury.  Prior precedent has indicated that a plaintiff can satisfy the redressability requirement by showing that a favorable ruling would slow or reduce harm.  The dispositive point in this analysis is what a plaintiff requests the court to do.  In their complaint, Plaintiffs sought an order demanding Defendant to create and implement a national plan to eliminate the use of fossil fuels and lower atmospheric levels of carbon dioxide.

The redressability of these claims faced major roadblocks.  First, Defendant countered that climate change is a worldwide issue, and the United States government cannot unilaterally redress Plaintiffs’ injuries. Furthermore, if some effects of climate change are irreversible (as Plaintiffs contend), then the injuries cannot be redressed.  Judge Aiken recognized the difficulties in conducting this analysis, involving both legal and scientific principles.  Nevertheless, Aiken ruled that a favorable ruling would at least partially redress Plaintiffs’ injuries, thus meeting this requirement.

For the foregoing reasons, Judge Aiken concluded that Plaintiffs had standing in this case.  However, the issue of Plaintiffs’ standing has not been settled. The issue of standing was one of many argued before the Ninth Circuit in June 2019, and this holding may be overturned.

b. The plaintiff’s argument: a constitutional right to a sustainable environment

In their most recent brief to the Ninth Circuit, Plaintiffs argue that governmental inaction in implementing policies that combat the effects of climate change violate younger and future generation’s rights to life, liberty, and property.  Furthermore, the plaintiffs assert that the right to a “’climate system capable of sustaining human life,’ (hereinafter ‘climate right’)” is a fundamental, unenumerated right under the Fifth Amendment.  Thus, by failing to enact any transformative climate change legislation, Plaintiffs assert that the U.S. government has infringed upon their constitutional rights without due process of law.

To satisfy the precedential requirements to establish a finding of a fundamental right, Plaintiffs contend that a climate right is both fundamental to ordered liberty and deeply rooted in American history. Regarding the first factor, Plaintiffs claim that a climate right underlies other rights; a sustainable climate is foundational to life, and thus supports other constitutional liberties. Furthermore, according to Plaintiffs, negative impacts to the environment would be a deprivation of a livable future, thus affecting other constitutional liberties that would be afforded to future generations.

Moreover, Plaintiffs allege that a climate right is deeply rooted in the history of the United States.  Plaintiffs cite a plethora of writings from Founding Fathers—like Thomas Jefferson and James Madison— pertaining to preservation of the natural world.  Specifically, Plaintiffs cite to Jeffersonian writings that center around the theory that Earth belongs “in usufruct to the living.”  Jefferson wrote that the planet was made for the living to use, and one generation cannot burden the use of another generation.

Plaintiffs also look to prior Supreme Court precedent where the Court found other fundamental rights.  Citing Loving v. Virginia, Plaintiffs contend that a climate right, analogous to other unenumerated rights, is “fundamental to our very existence and survival.”  While Lovingconcerned the unenumerated right to marry, Plaintiffs contend this rationale similarly applies to a climate right. Overall, Plaintiffs assert that recognition of a climate right is pervasive throughout American history.

c. The defendant’s argument: there is no basis for a climate right

Conversely, in their brief, the United States government maintains that this alleged fundamental right does not exist.  Government attorneys contend that a right to a sustainable environment is not deeply rooted in the nation’s history.  Furthermore, Defendant claims that Plaintiffs’ argument is “entirely without basis” in the history or tradition of the United States.

Defendant also contests the district court’s analogy with Obergefell. Defendant asserts that there can be no meaningful comparison made between the right to same-sex marriage and a sustainable environment.  Likewise, Defendant states that the fundamental relationship to the country’s history and tradition in this case does not relate to that in Obergefell.  Furthermore, Defendant warns that the holding in Obergefellwas not an invitation to identify new fundamental rights.

Finally, Defendant warns that a purported climate right would “run indiscriminately to every individual in the United States.”  Distinguishing from Supreme Court precedent, Defendant notes that recognized fundamental rights relate to personal and intimate issues.  Because of the universal effects of climate change, Defendant asserts that a climate right qualifies as a public issue and thus does not have a valid connection to personal rights.

d. What is next for this case

As of October 17, 2019, the Ninth Circuit has not released their official opinion for this case.  According to John Schwartz of the New York Times, it is unclear which side is likely to prevail, as judges were skeptical of both parties’ arguments.  The panel of judges appeared to view Plaintiffs’ argument as too broad, while Defendant’s argument seemed too narrow.

Regardless of how the Ninth Circuit decides this case, the ruling will likely be historic.  Furthermore, the losing party will likely appeal. Thus, this issue may very well make its way to the Supreme Court again in the near future.  It will be interesting to see if Plaintiffs will get a chance to take their case to trial and present evidence supporting their allegations. For Plaintiffs, the fight for a climate right continues.