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Environmental hokey pokey: the fight against climate change is hazy even after landmark decision Juliana v. United States

With the election of a new President, the future environmental policies of the United States could contradict Juliana v. United States.

To the sound of thunderous applause, 196 countries of the world came together and passed the Paris Agreement in December 2015.    This landmark agreement committed the leaders and governments who signed to reduce emissions, reduce their consumption of fossil fuels, and invest in renewable energies.  The goal of the countries lowering their emissions was to keep the degree of change to just 1.5 degree Celsius.  Climate change would still occur, but the damage and catastrophe of climate change would be greatly reduced.  It was a step in the right direction in the global struggle against climate change.  “The Paris Agreement allows each delegation and group of countries to go back home with their heads held high,” said Laurent Fabius, President of the COP 21 UN Climate Change Conference and French Foreign Minister.

As the conference came to an end, plans were already in motion to both fulfill and hinder the commitments these governments made to each other and the world.  Lawyers prepared briefs to defend or attack their governments while legislatures drafted legislation to promote or stall the Paris Agreement goals.

[T]he U.S. Federal District Court of Oregon found in favor of a group of young adults suing the Obama Administration…

In November of last year, the U.S. Federal District Court of Oregon found in favor of a group of young adults suing the Obama Administration for not combating climate change.  The issues presented in Juliana v. United States were, “whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”

The plaintiffs in this case are a group of young adults from the Eugene, Oregon area along with some environmental protection groups.  They alleged that they had suffered harm and would continue to suffer harm from the government’s lack of compliance with both international and domestic policies.  Specifically, they included ocean acidification, rising sea levels, and polluted air as injuries.  The government rejected these claims as not only being a political question, outside of judicial review, but also stated that the plaintiffs had no cognizable harm for which relief could be granted.  As recently as 2011, courts have been reluctant to include a right to be free of pollution and other environmental rights.  However, Judge Ann Aiken found that the young group’s complaint had an articulable and redress-able injury.  Although all of the injuries have not happened, the court said that the plaintiffs had no opportunity to present their evidence and the possibility of difficulty does not mean that a plaintiff will prevail or fail at trial.

The court went on to recognize a fundamental right that the government had infringed upon.  Judge Aiken wrote, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”  However, this “fundamental right” is tempered.  Plaintiffs cannot rely on “any minor or even moderate act that contributes to the warming of the planet into a constitutional violation”, but rather a complaint needs to allege…governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.”

President Trump seems to be making good on those promises by planning to leave the Paris Agreement.

During this historic case, Donald Trump was elected the 45th President of the United States.  Part of his platform on the campaign trail, backed by many rural communities in coal producing areas, was less environmental regulation of businesses.  He felt that increased regulations of energy producers and other businesses was killing jobs and hurting the economy.  Instead, he promised to tear down the wall of regulations to streamline the process and cut costs to businesses.  A little over a month since his inauguration, President Trump seems to be making good on those promises by planning to leave the Paris Agreement.

Under the Obama administration, the Dakota Access and the Keystone XL pipeline projects were stopped by the Army Corps of Engineers.  Permits were denied even though TransCanada had put millions into creating the pipelines.  The Sioux Tribe of Standing Rock and other Native American tribes protested for months in the heat and snow.  They celebrated with fireworks, thinking they had finally made progress when President Trump signed five executive orders in late January reopening the possibility of permits.  Upon signing, President Trump stated, “I believe in [environmentalism], but it’s out of control and we’re going to make a very short process and we’re going to either give you your permits or we’re not going to give you your permits, but you’re going to know very quickly.”

Many of the EPA’s policies are passed on the convention…

Furthering his campaign promise to cut back on regulations, President Trump has been trying to find a way for the U.S. to leave the Paris Agreement since the moment he was elected.  The agreement prohibits a signing state to leave the agreement for four years.  However, Trump could still leave the United Nations Framework Convention on Climate Change. This is the foundation upon which all of the U.N.’s climate change efforts are based.  Adopted in 1992 by 195 countries, the convention creates the goal of stopping climate change through intergovernmental cooperation.  However, unlike its prodigy the Paris Agreement, the UN convention allows signing members to leave after one year.  Even so, it is not ideal for President Trump to leave the convention.  Many of the EPA’s policies are based on the convention and would take time to dismantle altogether.  Additionally, many private companies, including oil giant Exxon Mobil, agree with both the United Nations Framework Convention on Climate Change and the Paris Agreement.

Further, Trump’s candidate to head the EPA, former Oklahoma Attorney General Scott Pruitt, was confirmed by the Senate.  Pruitt and the EPA have a long history together.  He sued the EPA fourteen times as attorney general, fighting the EPA’s restrictions on energy companies.  Republicans view Pruitt as a fixer who can reign in the EPA’s wide regulations.  Democrats, like Senator Bernie Sanders (D-VT), grilled Pruitt through confirmation because he would not say that humans definitively contributed to climate change.  In an exchange during the hearing, Sanders asked Pruitt, “Why is the climate changing?”  Pruitt answered, “My personal opinion is immaterial to the job of the….”  Before he could finish his sentence, Senator Sanders pointedly said, “Really? You are going to be the head of the agency to protect the environment, and your personal feelings about whether climate change is caused by human activity and carbon emissions is immaterial?”  With a new Secretary in place, the EPA will have to assess its priorities, agendas, and plans for the coming years.

What happens next is anyone’s guess.  The world has chosen to combat climate change.  Their goals have been set, and policies are changing to achieve these goals.  However, the Trump administration is essentially free to choose what course to take, whether to continue the fight against climate change or focus on deregulation of the economy.  Time will tell if the U.S. is all in or all out of the global climate change movement.

Claire Scott
About Claire Scott (5 Articles)
Claire Scott is a second year law student and serves as a Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.