In essence, plaintiffs assert a novel theory somewhere between a civil rights action and National Environmental Policy Act /Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution.
----- Magistrate Judge Thomas Coffin
Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. A great opening line, isn’t it? I'd be sorry I wasn’t the one who wrote it, but for the fact that the Chief Judge of the U.S. District Court for Oregon did.
It was part of Judge Ann Aiken’s opinion granting the plaintiffs in Juliana et. al. v United States et. al. standing to sue the federal government for its fossil fuel policies. The twenty-one plaintiffs in the case were all under the age of 19 when the suit was filed in August 2015.
The youth are claiming the federal government has:
The case is one of the most reported on and spoken of in the history of the environmental movement and for good reason. Should plaintiffs prevail, the federal government will be ordered by the court to regulate greenhouse gas emissions, based upon a preponderance of scientific evidence.
The trial date is set for February 5, 2018. Even before it begins in earnest, the case is creating an extraordinary record that will be debated in law schools for years recounted in speeches and referenced in the pleadings of myriad cases yet to come.
There is a certain dark irony to Obama’s having been originally named as a defendant--sued by Juliana and friends on one side for the failure to regulate, while vilified on the other by Trump and the Republican Party for attempting to do it by executive order. Whether the Juliana plaintiffs ever prevail, some say justice has already been served now that Trump and company are the defendants.
Just exactly who will be in charge of the federal government when a final decision is rendered is anyone’s guess. Given the pace of events and the number of layers to go through, it is possible one of the plaintiffs will be old enough to occupy the White House . Who said justice was quick?
The premise of the case is reasonably straight forward. Plaintiffs are challenging the federal government’s national fossil fuel programs, as well as the proposed Jordan Cove LNG export terminal in Coos Bay, Oregon.
The circumstances swirling around the Jordon Cove project are their own telenovela. Despite an initial indication of approval, Jordon Cove has now been turned down twice by the Federal Energy Regulatory Commission (FERC).
FERC’s disapproval of the LNG terminal was tied to its rejection of the 232-mile pipeline needed to feed it. FERC nixed the pipeline because the company, Pacific Connector Pipeline (PCGP, LP) was unable to show adequate market demand. The disapprovals occurred on President Obama’s watch.
The Senate recently approved two new commissioners—giving FERC the quorum it needs to operate. The now Trump majority will be asked again to approve both applications. The third time will likely prove the charm.
Opponents will then challenge any positive decision, claiming the approval was driven by politics rather than by changed market conditions. The cases are not inextricably linked.
The circumstances, however, fairly reflect the poli-legal context in which most of today’s climate and energy decisions are being made. Rather in which they are being argued, as most are ending up in court before being implemented.
Plaintiffs standing to sue
The government’s opening gambit was to claim the plaintiffs did not meet the three-question test of standing. The Chief Judge of the U.S. District Court for Oregon (Aiken) and the Magistrate Judge (Coffin) both thought otherwise.
To be granted standing a plaintiff must have suffered a concrete harm directly the result of a defendant’s action or inaction for which the court has the power to redress in some substantive manner.
Article III of the U.S. Constitution also requires there be an actual legal case or controversy. That is, the court is not being asked to answer hypothetical questions or to provide an advisory opinion.
Has the plaintiff suffered a concrete harm resulting from the defendant’s action/inaction?
The government argues there is insufficient information available regarding the claim the children were being harmed by CO2 and other GHG emissions.
Defendant’s counsel suggested in the alternative, if climate change was harmful, it was harmful to everyone, defeating the requirement of a specific concrete harm to the plaintiffs.
The court saw nothing in law or practice to suggest that many people suffering the same injury should somehow negate the standing of individuals:
…because CO2 persists in the atmosphere, future emissions will lead to severe impacts on children and future generations and the current level of C02 has already taken our country into the “danger zone.”
The court also reminded defendants they had previously accepted the accuracy of many of the harms alleged by the plaintiffs in their complaint, including:
Magistrate Judge Coffin highlighted the elevated nature of the rights the plaintiffs were claiming to have been violated by the government’s actions. His recommendation, later accepted by Chief Judge Aiken, was:
Given the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude.
Trump and company will likely spend a great deal of time in the future explaining why the government acquiesced to the accuracy of these statements in court, when the administration is denying them in public and behind closed doors in budget and policy meetings.
Truth be told, and in fairness to The Donald, the Trumpsters weren’t the ones to agree with the facts alleged by the plaintiffs. The Obama administration was still in office—although knowingly on the way out--when the deed was done.
You know what they say about payback not being the kindest of ladies? Why administration lawyers have chosen not to amend the response is a matter of some speculation. The decision to stand-pat has likely been made in hopes of avoiding an extended debate in open court about the science of climate change.
It is hard to believe the feds acquiescence won't come out in the press. The Juliana pleadings are basically a summary of the entire argument of climate defenders everywhere. Look for charges of FAKE NEWS in a paper near you as the February trial date approaches.
Plaintiffs contend the government’s actions in support of fossil fuels, e.g. allowing exploration and extraction on federal lands, and inactions, e.g. inadequately regulating GHG emissions, are:
…damaging human and natural systems, increasing the risk of loss of life, and requiring adaptation on larger and faster scales than current species have successfully achieved in the past, potentially increasing the risk of extinction or severe disruption for many species.
…allowing atmospheric concentrations of six well-mixed GHGs, including C02, to threaten the public health and welfare of current and future generations, and this threat will mount over time as GHGs continue to accumulate in the atmosphere and result in ever greater rates of climate change.
…increasing [in] allergies, asthma, cancer, cardiovascular disease, stroke, heat-related morbidity and mortality, food-borne diseases, injuries, toxic exposures, mental health and stress disorders, and neurological diseases and disorders.
The group of 21 are also alleging constitutional harms. Specifically, they assert the government is violating their 14th Amendment right to due process by willfully disregarding information about the potential catastrophic impact of greenhouse gases (GHGs) and allowing them to accumulate in the atmosphere.
They further claim:
…the actions and omissions of defendants…increased CO2 emissions "shock the conscience," infring[e] the plaintiffs' right to life and liberty in violation of their substantive due process rights….have violated plaintiffs’ equal protection rights embedded in the Fifth Amendment by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens…. have violated the public trust doctrine, secured by the Ninth Amendment, by denying future generations essential natural resources. (emphasis added)
The phrasing of the claims and alleged harms doesn’t simply focus on what has already occurred; it includes the prospect of future harms. The age of the plaintiffs in this case should not be considered incidental to the proceedings.
Their youth allows them to introduce the long view into the discussion. With more of their lives ahead of them than behind, they can appropriately point to the compounded costs—to humans and nature—that are rising rapidly because of the federal government’s stance on fossil fuels.
What can the court do about it?
Whether actual belief or wishful thinking, the government is also attacking the plaintiff’s standing based on a lack of available options to redress the alleged harms. The court responded by referencing the plaintiffs’ proffered suggestions:
The court’s willingness to consider and credit prospective harms is important to its ultimate fashioning of remedies. A favorable verdict for the plaintiff in this case would result in the federal government being ordered to put in place a Clean Power Plan redux. A plan that ramps up reductions over time, a plan likely stronger than Obama’s.
The constitutional basis of the rights that would be protected should the plaintiffs prevail provides a level of surety and stability not found in the usual run of environmental lawsuits. Cases based on legislatively enacted frameworks like the Clean Air and Water Acts can subsequently be defeated or diminished by the Congress through new or amended legislation.
The rights the Juliana plaintiffs are looking to have established would be constitutionally based and, therefore, protected from Congressional infringement. Judge Aiken and Magistrate Judge Coffin have both shown keen awareness of the issues involved and appear willing to keep the case at the constitutional level.
Actual legal case or controversy
Government lawyers have also been arguing the case was non-justiciable because they believe it to be politically motivated. They argue: a court of law is the wrong venue in which to debate the substance of the claim.
The argument is consistent with a particularly snarky comment made by H. Sterling Burnett of the Heartland Institute shortly after Judge Aiken issued her original 2016 opinion:
This is purely political — a liberal judge putting his personal opinions on climate change above the law…. The Obama administration has gone around our elected representatives to enact draconian restrictions on greenhouse gas emissions, yet for these kids that’s not enough.
…this case “should have been thrown out of court…. since the children can’t show they have or are or will be harmed …burning fossil fuels does not violate any portion of the Constitution or the bill of rights… Rather, burning oil and gas contributes greatly to life, the pursuit of happiness, and the general welfare.
Coffin disagreed and could think of no better qualified forum for reasoned debate:
Whether…climate change is occurring, whether …human induced, and the degree of its severity and impact on the global climate, natural environment, human health is quintessentially a subject of scientific study and methodology, not solely political debate. The judicial forum is particularly well-suited for the resolution of factual and expert scientific disputes, providing an opportunity for all parties to present evidence, under oath and subject to cross examination in a process that is public, open, and on the record. (emphasis added)
For Judges Aiken and Coffin the possible presence of politics was not disqualifying. They reasoned that if the harms were real, then so too was the case.
Juliana will mark the first time federal fossil energy policy and climate change will be argued together in open court. The hyper-partisanship darkening the skies above Capital City, the one-sidedness of most mainstream news outlets, the enmity exhibited in public forums like town-hall meetings and elsewhere, suggest Their Honors Aiken and Coffin are right. The venue best suited to host and manage such a debate would indeed seem to be a court of law.
I would imagine President Trump and EPA Administrator Pruitt would disagree with the judges about this. For Pruitt, this should be the equivalent of his proposed Red Team/Blue Team reality show. Then again, he will not be given the opportunity of choosing both the defenders and the deniers.
Trump too would undoubtedly prefer a situation more under his control—perhaps hosting it as part of a campaign rally in an airplane hangar on Oklahoma’s Tinker Air Force base. In many ways, the timing and location of the Juliana case could not have been better.
A decision by the trial court will not be final of course; whoever emerges the loser will continue to fight the matter all the way to the U.S. Supreme Court (SCOTUS). However, a civil and balanced debate between plaintiffs’ defenders and defendants’ deniers may help to create a credible public record that could support productive, rather than partisan, action by Congress.
The debates and deliberations in the Juliana courtroom should, at a minimum, serve as a guide in other cases. Increasingly the judiciary is being asked to work at the nexus where the laws of man and Nature interact. The place where policymakers were once able to cooperate but seem no longer able to function.
The Public Trust Doctrine
Should Juliana make it through the court system reasonably unscathed, it will will open wide the doors of the judiciary to citizen lawsuits through what is called the public trust doctrine (PTD).
The doctrine itself goes back at least to the Roman Emperor Justinian and is conceptually quite straightforward. It holds that the world around us, e.g. air, water, forests, mineral resources, animal life, etc. form the corpus of a natural trust.
Government (in this case the federal government) is the trustee and the beneficiaries of the trust are present and future generations. According to Blum and Wood the government trustees owe a fiduciary duty of protection against “substantial impairment” of the air, atmosphere, and climate system, an affirmative duty to restore its balance and courts have a duty to enforce these trust obligations.
PTD predates the Constitution and enters into U.S. jurisprudence as part of the British common law tradition. It has been applied directly and most often by state courts.
SCOTUS has never used the doctrine as the basis for mandatory federal protections but neither has it denied its existence in U.S. law. Responding to defendant counsel’s assertion that the federal government has somehow abdicated or dissolved its own use of PTD, Judge Coffin wrote (with what appears to be a heated pen):
The federal public trust doctrine may have been relatively dormant in federal courts since the 19th Century, but it has hardly been extinguished. If the doctrine were to be extinguished, it assuredly would not be in the form of a… Supreme Court ruling on a matter that did not even involve the question of whether the federal government has public trust obligations over its sovereign seas and territories. (emphasis added)
Once it is established that the beneficiaries of the natural trust have the right to a climate system capable of sustaining human life, the focus shifts to the actions or inactions of the trustee.
Whether the government trustee has degraded the value of the trust is a factual question, in which case the outlook of the Juliana case brightens considerably. The courts have never required absolute certainty of the science.
Cases like Massachusetts v. EPA established the measure of a preponderance of evidence. Today the preponderance of evidence concludes climate change is real, harmful and largely caused by human activity.
The Juliana case is complicated. It will not be decided quickly. It does, however, represent the best hope for cutting the tangled knot that decades of hyper-partisanship have tied the nation in.
Should Judge Aiken’s opinions and Judge Coffins Finding and Recommendations be upheld by SCOTUS, the Juliana case could well prove the road to Emerald City and a bright future for the Juliana plaintiffs, their grandchildren and their grandchildren’s grandchildren.
A Post Script—Three Intervenors Drop Out
Along with his order setting the February trial date, Judge Coffin agreed to release as defendants in the case the National Association of Manufacturers (NAM), the American Petroleum Institute (API) and the American Fuel and Petrochemical Manufacturers (AFPM). The three were not originally named by the plaintiffs but had asked to join as intervenors.
Julia Olson, co-lead attorney for the children, commented that 18 months ago, these fossil fuel associations went to incredible lengths to become defendants so that they could shut down this case. The fear then was that the Obama administration would roll-over and plead guilty so that it would be ordered by the court to do what the President was otherwise willing to do by executive order.
For years Scott Pruitt and other climate conservatives have accused the Obama administration and environmental organizations of a collusive strategy known as sue and settle. The tactic involves a wink and a nod between plaintiffs and defendants.
A suit is brought claiming EPA isn’t doing what it is supposed to be doing, e.g. regulating CO2 emissions. The defendant rolls over saying that’s right, I didn’t. The court grants the plaintiff the requested relief, e.g. orders EPA to regulate carbon. Case closed.
The claimed collusion is the agency asking to be sued or at least indicating it won’t fight hard, so it could be ordered to do what both it and the plaintiff environmental organization wanted done in the first place.
I can’t say such a thing has never been done. It is fair to say, however, that if it could be proven, it would be minimally a massive ethical breach and grounds to vacate the court order.
It should also be noted that such a tactic could just as easily be employed by a conservative president and the Heritage Foundation or the National Association of Manufacturers. The exact reason the three intervenors wanted out of the Juliana case is not entirely clear.
Olson’s implication that they were in it to keep the Obama—or H. Clinton—administration from rolling over does have a ring of truth to it. The National Association of Manufacturers general counsel, Linda Kelly, did state publicly that NAM (and presumably API and AFPM) no longer feel[s]that [its] participation in this case is needed to safeguard industry and [its] workers.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.