Oregon Federal Court Issues Remarkable Decision Finding Constitutional Right to Stable Climate

Among other things, the plaintiffs claim this conduct infringes their constitutional rights to life, liberty, and property in violation of their substantive due process rights, and that Defendants have violated the public trust doctrine, secured by the Ninth Amendment, by denying future generations of the country access to essential natural resources, such as the coastlines.

The plaintiffs seek a variety of remedies. The most significant are:

• They seek a declaratory judgment which would “[d]eclare that Defendants have violated and are violating the plaintiffs’ fundamental constitutional rights to life, liberty, and property” by causing or contributing to the dangerous levels of carbon dioxide in the atmosphere thereby “dangerously interfering” with a stable climate system “Required by our nation and Plaintiffs alike”;[6]

• They ask the court for an injunction preventing the defendants from further violations of the Constitution;

• They ask the court to order the Defendants to prepare a consumption-based inventory of United States carbon dioxide emissions; and

• They ask the court to order the Defendants to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide] so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”[7]

Defendants and several intervening Energy Industry Groups filed a motion to dismiss the plaintiffs’ claims for lack of subject matter jurisdiction and failure to state a claim. As the court stated in denying the motions:

This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed. The questions before the Court are 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.[8]

First, the court determined that it did have subject matter jurisdiction: “[A]t its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.”[9] As to standing—a doctrine which requires that a plaintiff allege some particular injury in fact, that the defendants caused the injury, and that the relief requested from the court will redress the injury—the court determined that, at the pleading stage, the plaintiffs’ had met all three requirements.[10]

Next, Judge Aiken turned to the motions to dismiss for failure to state a claim, issuing her most noteworthy finding. Drawing inspiration from the Supreme Court’s recent decision in Obergefell v. Hodges,[11] in which the court recognized a constitutional right to same-sex marriage, Judge Aiken stated that the plaintiffs had identified a fundamental right: the right to a “climate system capable of sustaining human life.”[12] She articulated the right as follows:

In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase “capable of sustaining human life” should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges 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, To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.[13]

Judge Aiken next addressed the Defendants’ and Intervenors’ argument that the government had no affirmative obligation to act to prevent climate change. Judge Aiken relied on the “danger creation” exception[14] to the government’s lack of any affirmative obligation to act, [15] although she acknowledged plaintiffs may have difficulty meeting the exception’s rigorous proof requirement in later stages of litigation.[16]

Finally, Judge Aiken found that the plaintiffs’ federal public trust claims were “cognizable in federal court,”[17] and the plaintiffs’ claims for violation of that doctrine were sourced in the Due Process Clause of the Fifth Amendment.[18] In doing so, the Judge broke with a recent case from the federal district court for the District of Columbia, which held that the public trust doctrine does not apply to the federal government,[19] and sided with two older cases from the Northern District of California and the District of Massachusetts, which held that the public trust doctrine did apply to the federal government.[20]

Judge Aiken concluded by emphasizing that this case “is of a different order than the typical environmental case,”[21] but that the same legal standards nevertheless applied:

This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs’ allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.[22]

Juliana is scheduled to go to trial some time in 2017. Unsurprisingly, the case has generated significant media interest. One report posited that Judge Aiken’s decision “opened a path for an eventual court-mandated, science-based plan to bring about sharp emissions reductions in the United States.[23] Yahoo! News said that Judge Aiken’s ruling “has already set groundbreaking legal precedents in the nascent field of climate change law.”[24]

[1]See Juliana v. United States, 2016 WL 6661146 (D. Or. Nov. 10, 2016).

[2] The Juliana case is part of a recent litigation strategy, the so-called “Atmospheric Trust Litigation,” implemented by environmental activists to jumpstarts government efforts to reduce carbon dioxide emissions by 6% per year. See David Bollier, Climate Activism’s Daring New Approach: Atmospheric Trust Litigation, http://bollier.org/climate-activisms-daring-new-approach-atmospheric-trust-litigation (May 20, 2011, 9:50 a.m.).

[3] The Defendants include the President of the United States, the Council on Environmental Quality, the Office of Management and Budget, the Office of Science and Technology Policy, the Department of Energy, the Department of the Interior, the Department of Transportation, the Department of Agriculture, the Department of Commerce, the Department of Defense, the Department of State, and the Environmental Protection Agency.

[4]Juliana v. United States, 2016 WL 6661146, at *1 (D. Or. Nov. 10, 2016).

[5]Juliana v. United States, 2016 WL 183903, at *1 (D. Or. Jan. 14, 2016

[6] 2016 WL 183903, at *1–2.

[7]Id.

[8] 2016 WL 6661146, at *2. In a footnote, Judge Aiken commented:

For the purposes of this motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants open their Objections to Judge Coffin’s F & R by stating that “[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time.” In the 2015 State of the Union address, defendant President Barack Obama declared “[n]o challenge … poses a greater threat to future generations than climate change,” When asked at oral argument if they agreed that human-caused climate change poses a serious threat, intervenors declined to take a clear position. All parties agree, however, that a dispute over the existence of climate change is not at the heart of this case.

Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146, at *2 n.3 (D. Or. Nov. 10, 2016) (citations omitted).

[9]Id. at 8 (citing INS v. Chadha, 462 U.S. 919, 941 (1983))

[10]Id. at *9–14. The injuries alleged by the plaintiffs include:

• Lead plaintiff Kelsey Juliana alleges algae blooms harm the water she drinks and low water levels caused by drought kill the wild salmon she eats;
• Another plaintiff, Xiuhtezcatl Roske-Martinez, alleges increased wildfires and extreme flooding jeopardize his personal safety;
• Plaintiff Alexander Loznak alleges record-setting temperatures harm the health of the hazelnut orchard on his family farm, an important source of income and food for him and his family;
• Other plaintiffs claims low snowfall has made it impossible to ski in the winter; hot, dry conditions aggravate asthma; and that flooding caused water and raw sewage to run through one of their homes where they were forced to remain for weeks.

Id. at *9–10.

[11] 135 S.Ct. 2584 (2015).

[12]Juliana, 2016 WL 6661146, at *15.

[13]Id. at *16.

[14]L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).

[15]DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).

[16]Id. at *17.

[17]Id. at *24.

[18]Id. at *25.

[19]See Alec. L. V. Jackson, 863 F.Supp.2d 11 (D. D.C. 2012).

[20]See City of Alameda v. Todd Shipyards Corp., 635 F.Supp. 1447, 1450 (N.D. Cal. 1986); United States v. 1.58 Acres of Land Situated in the City of Boston, Suffolk Cnty., Mass., 523 F.Supp. 120, 124 (D. Mass 1981).

[21]Juliana, 2016 WL 6661146, at *26.

[22]Id.

[23] Eric Holthaus, The Kids Suing the Government Over Climate Change Are Our Best Hope Now, Slate, http://www.slate.com/articles/health_and_science/science/2016/11/the_kids_lawsuit_over_climate_change_is_our_best_hope_now.html.

[24] Andrew Freedman, How 21 Kids Could Keep Climate Websites From Going Completely Dark, Yahoo! News, https://www.yahoo.com/news/21-kids-could-keep-climate-013753594.html (January 26, 2017).