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our childrens trustBy Nikita Perumal and Jessica Wentz

A foundational component of sustainable development is the principle of inter-generational equity: that we should meet the needs of the present without compromising the ability of future generations to meet their own needs.

On August 12, a group of twenty-one youths invoked this principle in a lawsuit filed against the federal government in the U.S. District Court in Oregon. The complaint alleged that the federal government has violated “the fundamental right of citizens to be free from government actions that harm life, liberty, and property” by “approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion.”[1]

The non-profit Our Children’s Trust, which helped file the complaint for declaratory and injunctive relief, explains on its website that “[p]laintiffs seek to hold President Obama and various federal agencies responsible for continued fossil fuel exploitation. The Federal Government has known for decades that fossil fuels are destroying the climate system.” Thus, according to Julia Olson, lead counsel on the case and public interest attorney for Our Children’s Trust, “this lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations?”

 

Summary of the Complaint

 The complaint in Kelsey Cascadia Rose Juliana, Xiuhtezcatl Tonatiuh M. et al. v. United States, Barack Obama et al. cites several constitutional violations arising from the federal government’s continued promotion and use of fossil fuels. The specific allegations include:

Fifth Amendment Due Process Clause: The federal government has violated the plaintiffs’ substantive due process rights by allowing atmospheric CO2 levels to reach levels that endanger the lives, liberty, and property of the youth defendants and future generations.

Fifth Amendment Equal Protection: The federal government has denied plaintiffs and future generations the same protection of fundamental rights afforded to prior and present generations of adult citizens. In particular, Section 201 of the 1992 Energy Policy Act is unconstitutional due to its mandatory authorization for export and import of natural gas (which “discriminates against Plaintiffs by exacerbating already-dangerous levels of atmospheric CO2… the consequences of which will be irreversible and catastrophic in Plaintiffs’ lifetimes”).[2] Moreover, because climate change poses a “grave and continuing harm to children,” the plaintiffs should be treated as a protected class and the court should apply strict scrutiny when reviewing the Equal Protection claim.[3]

Unenumerated Rights Preserved by the Ninth Amendment: The “right to be sustained by our country’s vital natural systems, including our climate system” is one of the “implicit liberties protected from government intrusion by the Ninth Amendment.”[4] Federal defendants have violated this right by contributing to dangerous levels of atmospheric and oceanic CO2 and a destabilized climate system.

The Public Trust Doctrine: Plaintiffs are “beneficiaries of rights under the public trust doctrine, rights that are secured by the Ninth Amendment and embodied in the reserved powers doctrines of the Tenth Amendment and the Vesting, Nobility, and Posterity Clauses of the Constitution.”[5] Federal defendants have violated their public trustee obligations by contributing to the destruction of the climate system—a vital natural resource for present and future generations.

Climate scientist James Hansen, who will serve as guardian to 17-year-old plaintiff Sophie Kivlehan and to “Future Generations” in the case, notes in an expert declaration supporting the case that “in [his] opinion, this lawsuit is made necessary by the at-best schizophrenic, if not suicidal, nature of U.S. climate and energy policy.” To amend for such policy, the complaint requests injunctive relief through a court order that would require “[d]efendants to swiftly phase-down CO2 emissions aimed at atmospheric CO2 concentrations that are no more than 350 ppm by 2100, develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilize the climate system.”[6] The complaint also requests that the administration prepare a consumption-based inventory of CO2 emissions in the United States.

The case singles out the recent federal approval of the Jordan Cove Liquefied Natural Gas (LNG) energy project proposal in Coos Bay, Oregon, which serves as a specific and local example of a fossil fuel extraction project that would infringe on the plaintiffs’ constitutional rights. In the press release by Our Children’s Trust, 18-year-old plaintiff and Oregon resident Alex Loznak detailed his injury with respect to the Jordan Cove project:

“By 2020, [the project] will be the largest emitter of greenhouse gases in the whole state of Oregon. Science tells us we must sharply cut back on CO2 emissions, but my Federal Government has given the green light to massive LNG exports from this terminal. If constructed, the terminal would process one billion cubic feet of natural gas per day, locking us into dependence on fossil fuels at a time when we should be transitioning toward a renewable energy economy. My family has owned a farm near the proposed pipeline route for almost 150 years, and I’m worried about the impacts that increased drought and wildfire will have on the farm unless we act now on climate change.”

Ms. Olson asserted in the same press release that “[t]he Federal Government has consciously chosen to endanger young people’s right to a stable climate system for the short-term economic interests of a few. In light of the established science, federal approval of the Jordan Cove LNG Project cannot stand.” Accordingly, the complaint’s Prayer for Relief requests that the court declare unconstitutional both Section 201 of the Energy Policy Act (which mandates the authorization of natural gas imports from and exports to nations with which the U.S. has a free trade agreement) and the DOE/FE order granting authorization for the Jordan Cove project.

In addition to the injuries specific to the Jordan Cove project, a significant portion of the 96-page complaint is dedicated to enumerating the specific ways in which the plaintiffs’ rights to life, liberty, and property will be adversely affected by climate change. The text establishes that the plaintiffs, as young people, are “especially vulnerable to the dangerous situation that Defendants have substantially caused.”[7] It elaborates the livelihoods, environments, and injuries of the 21 youths in great detail. 18-year-old Jacob Lebel, for instance, “is harmed and will continued to be harmed” by the defendants’ actions because climate change will contribute to the deterioration of the farm on which he works and intends to pursue a livelihood.[8] Similarly, Zealand Bell, 11, has been negatively impacted by increased drought, heat waves, and warmer temperatures, which have threatened “his enjoyment of outdoor activities” and have resulted in lost income, as his mother’s seasonal job at a ski resort was not available in 2014 due to lack of snow.[9] Sahara Valentine, also 11, has experienced several asthma attacks from the increased frequency of forest fires in Oregon (a result of hotter and drier temperatures).

In a statement to The Huffington Post, EPA deputy press secretary Laura Allen responded to the complaint with a reference to the EPA’s current work on climate change:

“That’s why President Obama launched the Climate Action Plan and why EPA is taking action with our Clean Power Plan: to give our kids and grandkids the cleaner, safer future they deserve. We have a moral obligation to leave a healthy planet for future generations … A child born today will turn fifteen in the year 2030 – the year when the full benefits of the Clean Power Plan will be realized.”

The complaint itself, however, cites the Clean Power Plan as “another example of EPA’s failure to even seek future CO2 emissions reductions at anything near the rate required to preserve a habitable climate system.”[10] The plaintiffs thus indict the plan as insufficient—it only impacts emissions from the power sector, encourages reliance on natural gas, does not otherwise diminish fossil fuel extraction in the United States, and “does not even return U.S. emissions to 1990 levels.”[11]

 

Legal Hurdles

This preliminary complaint will no doubt face certain hurdles as it proceeds.

Standing – One threshold issue is whether the plaintiffs have standing to bring the suit. To demonstrate standing, plaintiffs must show that they have suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the challenged action, and that it is likely—as opposed to merely speculative—that a favorable court decision will redress the injury.

The “particularized injury” requirement is one potential barrier to lawsuits alleging injuries from climate change and other widespread environmental harms.[12] The Supreme Court has held that, to satisfy this requirement, plaintiffs must show that they are injured in a “personal and individual way and that they seek relief that will “directly and tangibly” benefit them in a manner distinct from its impact on “the public at large.”[13]

As noted above, the complaint in this case goes into great detail about the specific injuries suffered by the youth plaintiffs, and this may be sufficient for the purpose of demonstrating particularized injury. However, given that there are many similarly situated persons who will suffer similar injuries, the court may conclude that these are “generalized grievances” and that the “impact on [the plaintiffs] is plainly undifferentiated and common to all members of the public.”[14]

Plaintiffs may also have difficulty establishing that their injuries are fairly traceable to federal defendants’ actions and omissions, and correspondingly, that a favorable decision could redress those injuries. Establishing a causal connection in this context will likely require a showing that greenhouse gas (GHG) emissions from the allegedly unconstitutional behavior constitute a “meaningful” or “significant” contribution to global GHG levels. For example, in Massachusetts v. EPA (2007), the Supreme Court held that Massachusetts had standing to challenge EPA’s failure to regulate GHG emissions from the transportation sector because the record indicated that the U.S. transportation sector “emits an enormous quantity of carbon dioxide into the atmosphere” and these emissions did in fact “contribute” to the adverse impacts of climate change on the state.[15]

Several years later, in Washington Environmental Council v. Bellon (2013), the U.S. Court of Appeals for the Ninth Circuit held that two non-profits did not have standing to challenge Washington State’s failure to regulate GHG emissions from five oil refineries, because they had not shown that the refineries’ emissions made a “meaningful contribution to global GHG levels.”[16] As such, plaintiffs had not established an adequate causal connection between those emissions and the alleged injuries resulting from the adverse impacts of climate change.

Similarly, in Kivalina v. ExxonMobil Corporation (2009), the U.S. District Court for the Northern District of California held that the Inupiat village of Kivalina lacked standing to sue oil, energy, and utility companies for public nuisance based on their GHG emissions. Specifically, the court held that Kivalina had not demonstrated that its injuries were “fairly traceable” to the defendants’ actions. The court noted that there were a “multitude of ‘alternative culprit[s]’ allegedly responsible for the various chain of events allegedly leading to the erosion of Kivalina.”[17] But as noted below, this case was ultimately affirmed on different grounds (the federal common law claims had been legislatively displaced by the Clean Air Act).

Political Question – A second threshold issue is whether plaintiffs have raised a non-justiciable political question. The District Court in Kivalina asserted that, in addition to a lack of standing, the political question also barred review of the case. The court explained that plaintiffs had raised a political question because: (i) there was insufficient guidance as to the principles or standards that should be employed to resolve the claims at issue,[18] and (ii) resolving Kivalina’s nuisance claim would require the court to make decisions that are better left to the executive or legislative branch in the first instance, such as defining an acceptable limit on GHG emissions from the energy producers.[19]

However, the political question doctrine has not prevented the Supreme Court and other federal courts from reviewing climate change-related claims. The Supreme Court did not explicitly analyze this issue in Massachusetts v. EPA (2007) or American Electric Power v. Connecticut (2011). But in American Electric Power, the Court did note that there was no “threshold obstacle” that barred review of a federal common law nuisance claim against major GHG emitters. In making this statement, the Court cited the defendants’ political question argument, which had already been rejected by the Second Circuit Court of Appeals.[20] The Second Circuit decision addressed the political question argument in depth and concluded that none of the Baker factors[21] would bar review of a federal common law claim alleging nuisance as a result of GHG emissions.[22]

Displacement – The Supreme Court ultimately decided in favor of the defendants in American Electric Power, holding that the federal common law claims had been legislatively displaced by the Clean Air Act and its authorization for EPA to regulate GHG emissions. [23] Following this decision, the Ninth Circuit Court of Appeals affirmed the Kivalina decision for the same reason (without discussing the validity of the lower court’s interpretation of standing requirements and the political question doctrine).[24]

In the present case, plaintiffs have alleged violations of constitutional law rather than federal common law. Although the doctrine of displacement does not apply to constitutional claims, the Supreme Court’s determination that the field of GHG regulation is now “occupied” because the Clean Air Act authorizes EPA to decide when and how to regulate such emissions may influence the court’s analysis of whether plaintiffs have raised a political question that should be resolved by the executive and legislative branches.

Constitutional Claims – Even if the case survives these initial hurdles, the plaintiffs may have difficulty succeeding on the merits.

Their public trust claim will likely be dismissed in light of recent case law. Take, for example, the Supreme Court’s decision in PPL Montana, LLC. V. Montana (2013), where Justice Kennedy wrote that “the public trust doctrine remains a matter of state law” and that “the contours of that public trust do not depend upon the Constitution.”[25] This statement may have been dictum, but has nonetheless been treated as controlling precedent. In Alec L. v. Jackson (2012), another suit brought by Our Children’s Trust, a U.S. District Court for the District of Columbia cited this language when dismissing a lawsuit alleging that the federal government had violated its obligations as a public trustee by failing to reduce GHG emissions.[26] The D.C. Circuit Court of Appeals affirmed this decision last year.[27]

With respect to Substantive Due Process claims, the Supreme Court has held that the asserted fundamental liberty interest must be “deeply rooted in [our] Nation’s history and tradition” and that the judicial analysis must begin with “careful description” of the asserted right (since courts “must exercise the utmost care [when] asked to break new ground in this field”).[28] In this case, the plaintiffs allege an injury to their “dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, maintain their bodily integrity, and lead lives with access to clean air, water, shelter, and food.”[29] While many of these rights may qualify as fundamental liberty interests under the Supreme Court’s test, the courts have been very slow to declare Substantive Due Process rights. Moreover, in the few cases where courts have found a violation of Substantive Due Process rights, it has been in the context of affirmative government action that directly and purposively restricted private behavior in a manner which abridged the rights of certain groups.[30] In the present case, the connection between the federal defendants’ behavior and the violation of the rights is more tenuous.

Although the plaintiffs do not explicitly refer to a “right to a clean environment,” it is worth noting that the federal courts have yet to infer such a right from the constitution. In Environmental Defense Fund v. Corps of Engineers of U.S. Army (1971), a District Court in Arkansas concluded that such a right was not protected under the 5th, 9th, and 14th Amendments. The court explained:

Those who would attempt to protect the environment through the courts are striving mightily to carve out a mandate from the existing provisions of our Constitution. Others have proposed amendments to our Constitution for this purpose. … Such claims, even under our present Constitution, are not fanciful and may, indeed, some day, in one way or another, obtain judicial recognition. But, as stated by Judge Learned Hand in Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809 (2 Cir., 1944):

‘Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’

The Ninth Amendment may well be as important in the development of constitutional law during the remainder of this century as the Fourteenth Amendment has been since the beginning of the century. But the Court concludes that the plaintiffs have not stated facts which would under the present state of the law constitute a violation of their constitutional rights… The Court’s decision on this point gives further emphasis to its statement, supra, that final decisions in matters of this type must rest with the legislative and executive branches of government.[31]

Similar decisions have been issued in the Fourth Circuit[32] and by district courts in New York[33] and Texas.[34]

Notably, although the courts have not yet held that the constitution includes an implicit right to a clean environment, the decisions in Environmental Defense Fund v. Corps of Engineers and other cases did suggest that a right may be forthcoming. However, it is extremely unlikely that our Supreme Court would support such a novel interpretation of the constitution at this time.

 

Other Legal Developments

Our Children’s Trust has been active in coordinating other youth-led climate law cases, such as the recently decided case Zoe & Stella Frazier v. Washington Department of Ecology, where the Supreme Court of Washington ordered Washington’s Department of Ecology to reconsider its denial of a petition for GHG rulemaking in light of the best available scientific evidence on climate change. The non-profit is also helping 19-year-old plaintiff Kelsey Juliana and another Oregon teen pursue a separate lawsuit that evokes the state public trust doctrine in order to force further state action on climate change; the teens are in the process of appealing a state judge’s recent adverse decision to their suit. Notably, both of these cases involve state law, rather than federal law, and as such they will not affect the outcome of the latest lawsuit from Our Children’s Trust.

At the international scale, the June 2015 decision by the Hague District Court in the Netherlands ruled for the Dutch government to further curb its GHG emissions beyond previously pledged targets, citing the European Convention on Human Rights, the Dutch Constitution, and principles of fairness, “no harm,” and hazardous negligence. (The Dutch government has not yet decided whether to appeal.) A similar suit has been filed in Belgium and, according to NPR, another is expected in Norway. Unlike in the U.S., the constitutions in the Netherlands, Norway, and Belgium include either a governmental mandate to protect the environment or an individual right to a clean environment. Thus, there is more reason to be optimistic about the outcomes of these cases.

 


[1] Complaint for Declaratory and Injunctive Relief at 85, Kelsey Cascadia Rose Juliana, Xiuhtezcatl Tonatiuh M. Et Al. v. United States, Barack Obama et al., No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015).

[2] Id. at 91.

[3] Id. at 90.

[4] Id. at 92.

[5] Id. at 93.

[6] Id. at 7.

[7] Id. at 6.

[8] Id. at 13.

[9] Id. at 16.

[10] Id. at 49.

[11] Id. at 50.

[12] See, e.g., Summers v. Earth Island Institute, 555 U.S. 488 (2009); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118, 1133 (D.N.M. 2011); WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77, 84 (D.D.C. 2012) aff’d sub nom, WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013). See also Hope M. Babcock, The Problem with Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm and Standing Jurisprudence, 25 J. Land Use & Envtl. L. 1-18 (2009).

[13] Lujan v. Defenders of Wildlife, 504 U.S. at 560, n. 1, 573-574.

[14] Id. at 575 (citing United States v. Richardson, 418 U.S. 166, 171, 176–177 (1974)).

[15] Massachusetts v. E.P.A., 549 U.S. 497, 499 (2007).

[16] Washington Environmental Council v. Bellon, 732 F.3d 1131, 1135 (9th Cir. 2013), reh’g en banc denied, 741 F.3d 1075 (9th Cir. 2014).

[17] Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863, 881 (N.D. Cal. 2009), aff’d on other grounds, 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013). See also Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) aff’d, 718 F.3d 460 (5th Cir. 2013) (dismissed climate change claims by private plaintiffs, citing both the political question doctrine and lack of Art. III standing).

[18] Id. at 876-77.

[19] Id. at 877.

[20] American Electric Power v. Connecticut, 131 S. Ct. 2527, 2535, n. 6 (2011).

[21] In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court articulated six factors for determining whether a case presents a non-justiciable political question: (1) there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department;” as an example of this, Brennan cited issues of foreign affairs and executive war powers; (2) a “lack of judicially discoverable and manageable standards for resolving” the case; (3) the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;” (4) the “impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;” (5) an “unusual need for unquestioning adherence to a political decision already made;” (6) the “potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

[22] Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 332 (2d Cir. 2009) rev’d, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011).

[23] American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011).

[24] Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 853 (9th Cir. 2012).

[25] PPL Montana, LLC v. Montana, 132 S.Ct. 1215, 1235 (2012).

[26] Alec L. v. Jackson, 863 F. Supp. 2d 11, 15 (D.D.C. 2012) aff’d sub nom. Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7 (D.C. Cir. 2014) (noting that the “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative… [t]hus, dicta or not, the Court’s statements regarding the public trust doctrine would nonetheless be binding on this Court”).

[27] Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7 (D.C. Cir. 2014).

[28] Washington v. Glucksberg, 521 U.S. 702, 706-07 (1997); Reno v. Flores, 507 U.S. 292, 302 (1993).

[29] Complaint at 86.

[30] See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925) (the Compulsory Education Act of 1922 unreasonably interfered with the liberty of parents and guardians to direct the upbringing of and education of their children, because it mandated that all students attend public school; Loving v. Virginia, 388 U.S. 1 (1967) (laws prohibiting interracial marriage violated the right to choose one’s spouse); O’Connor v. Donaldson, 422 U.S. 563 (1975) (state cannot constitutionally confine a non-dangerous mentally ill individual who is capable of surviving safely in freedom by himself).

[31] Envtl. Def. Fund, Inc. v. Corps of Engineers of U. S. Army, 325 F. Supp. 728, 739 (E.D. Ark.) supplemented, 325 F. Supp. 749 (E.D. Ark. 1971) (citations omitted).

[32] Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971).

[33] In re Agent Orange Product Liability Litigation, 475 F.Supp. 928 (D.C.N.Y. 1979).

[34] Tanner v. Armco Steel, 340 F.Supp.532 (S.D. Tex. 1972).

3 comments

  1. (this explains the USA’s past foreign policy a little better)

    They said Western Canada is the only part of the world hooked on oil. Saudi’s don’t want a consumer economy. And that I offered a solution yet will still be hated through the oil price drop.
    The real msg of The Perfect Storm is that in 1981, Iran invented a WMD hypothetically worse than Nuclear Winter. Nuking the oil reserves creates a Venus-like upper atmosphere. Presumably even here weather stops though the droplets would be large enough to rain out. For a few years the surface cools. But the increased air pressure forces heat to the oceans for 300 years, maybe a millennia. The oceans become a heat source to the surface and almost the whole surface is Water World. Presumably this triple layer (middle cool) temperature inversion is static. The solution is apparently to remove salt from the oceans. About 200000 Ocean Liner ships (subs look safer to me) are needed to remove enough salt in a decade to begin evaporation. Another decade the oil is rained out. Then make salt using geothermal heat and bring to the poles. AL-Q will hate me for this post but I don’t want their ill offshoots to bioterror the biosphere into a nearly dead surface.
    On RLV’s world, a rich person got into power and made this happen with volcanoes. The solutions is to pump out the oil and pump it into Australia and guard it. And salt making and ice making naval forces should be factored into future procurement of all Navies. Australia should subsequently be guarded even if cataclysmic events happen. Volcanoes should maybe be blocked with something (even a Mexico fence), and similarly patrolled if the stuff hits the fan. Modeling of this unclassified scenario should proceed.
    Giving everyone welfare makes people take other liberties; same for oil. This one type of mental illness is maybe what happened to RLVs. Russia need a Parliamentary Democracy; their leader is one of 280 uncorrupt people on Earth (Europe had 1000 more before EU profit motive). Perhaps Putin’s advisors can form a responsible gvmt?

  2. “Fifth Amendment Due Process Clause: The federal government has violated the defendants’ substantive due process by allowing atmospheric CO2 levels to reach levels that endanger the lives, liberty, and property of the youth defendants and future generations.”

    Should not that be ‘plaintiffs’?

  3. Thanks for catching that typo! Fixed.

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