By Hillary Aidun and Malia Libby
On January 17, 2020, the Ninth Circuit released its long-awaited opinion in Juliana v. United States. By a 2-1 vote, the panel declined to act on children’s claim that the U.S. government had violated their constitutional rights, including a right to “a climate system capable of sustaining human life,” by promoting fossil fuel use despite knowing that it can cause catastrophic climate change. The majority concluded that reasonable jurists could disagree about whether such a right exists, but held that, in any event, the plaintiffs lacked standing to assert it. The court reasoned that, “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” Explaining that “redressability questions implicate the separation of powers,” the court determined that it lacked the authority to design or supervise a plan that would achieve sufficient greenhouse gas reductions to vindicate the plaintiffs’ asserted rights. In the court’s view, doing so would require resolving questions entrusted to the political branches such as the appropriate sum to invest in public transit and the right timeline for transitioning to renewable energy. Plaintiffs have filed a petition for en banc review at the Ninth Circuit.
Although rights-based climate litigation has gained traction in many countries, the Juliana decision is not the first to hold that plaintiffs claiming a rights violation are not entitled to relief. Many of these cases are aggregated in our Climate Change Litigation Database. However, Juliana does stand apart from litigation in the rest of the world in at least one crucial respect. A number of courts worldwide have declined to provide redress, even where claimants have demonstrated that their rights may depend on a stable climate, after concluding that the government had properly exercised its discretion or that the policymaking process could still cure the alleged harm. The Juliana panel, by contrast, did not hold that the political branches were acting reasonably. Rather, the majority determined that it could not provide the requested relief even though the executive and legislature “may have abdicated their responsibility” in the face of a looming “environmental apocalypse.” This blog post discusses the distinctions between Juliana and other rights-based climate litigation around the world, which demonstrate the urgent need for policy and political leadership on climate change in the United States.
When Right Makes Might
It must first be noted that, in contrast to the Juliana panel, a number of courts around the world have concluded that human or constitutional rights require national governments to escalate their efforts to address climate change. In September 2015, the Lahore High Court in Pakistan held that the government’s delay in executing the Framework for Implementation of Climate Change Policy violated Pakistani citizens’ fundamental rights. The court took the type of action the Juliana panel concluded was beyond its authority, ordering the government to present a list of action points and creating a Climate Change Commission to monitor the government’s progress. In April 2018, the Supreme Court of Colombia ruled in favor of youth claiming that the government’s failure to reduce deforestation consistent with its obligations under the Paris Agreement threatened their fundamental rights. The Colombian court concluded that the Amazon was entitled to protection because the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.” Last December, the Dutch Supreme Court issued an extraordinary ruling in Urgenda v. Netherlands, concluding that the Netherlands’ climate policy was so insufficient that it violated rights protected by the European Convention on Human Rights. The court ordered the Dutch government to devise a plan to cut emissions by at least 25% by the end of 2020. And last month the UK Court of Appeal ruled that the government had violated the Planning Act 2008 by approving an expansion at Heathrow International Airport without considering its obligations under the Paris Agreement. Although the case was resolved on statutory grounds, the plaintiffs brought a human rights claim before the court below, which they did not press on appeal.
However, a number of courts have also found that climate change does or may implicate human or constitutional rights, and then declined to provide a remedy. These decisions have turned on the conclusion that the national government was properly exercising its policymaking discretion; the determination that the political branches could still take action to avert a future harm; and in one case, on narrow procedural grounds. None of these cases, however, reached a conclusion like the Juliana panel’s: that the separation of powers precludes the court from providing relief, even if its coequal branches have abjectly failed to address the problem.
In the cases discussed below, the national government had developed a nationwide plan to address climate change by reducing greenhouse gas emissions: precisely the type of action sought by the Juliana plaintiffs. In each case, when aggrieved citizens asserted that the plan was insufficient, the court concluded that rights-based challenges to climate change policies are or may be cognizable, but held that the plaintiffs were not entitled to relief because the government had acted within its policymaking discretion.
In December 2018 a British judge rejected the claim by Plan B. Earth that the UK government violated the Climate Change Act 2008 and Human Rights Act 1998 by failing to revise a 2050 greenhouse gas reduction target in light of scientific developments and the Paris Agreement. The judge concluded that the government had appropriately exercised its statutory discretion by refusing to amend the 2050 target, and therefore, had not violated either law. On Appeal, the Court of Appeal determined “it is arguable that [the] governmental response to the need for environmental protection engages human rights in general,” but concluded that no such rights had been violated because the government had acted within its discretion.
In October 2019 the Administrative Court of Berlin dismissed a claim by Greenpeace and three families that the government’s current climate policy—which will lower greenhouse gas emissions by 32% by 2050—violates the rights to life and health, occupational freedom and property as protected by the German Constitution. The court did hold that the government’s climate policy is subject to judicial review and must be consistent with the government’s duties to protect fundamental rights under the German Constitution. The court further held that the government must undertake measures to provide adequate and effective protection of the fundamental rights potentially affected by climate change, including the rights to life and property. However, the court concluded that the government is entitled to wide discretion in deciding how to fulfill these obligations, so long as precautionary measures to protect fundamental rights not are wholly unsuitable or wholly inadequate. Because that bar had been met, the government’s policy was not unconstitutional.
In the same month, Friends of the Irish Environment (FIE) lost a challenge to Ireland’s National Mitigation Plan (“the Plan”), which FIE argued contained insufficient interim measures to achieve the country’s 2050 carbon neutrality goal. FIE argued that the Plan violated the constitutional rights to life, bodily integrity, and an environment consistent with human dignity. Like the Juliana panel, the court assumed, for purposes of the case at bar, that the rights asserted “are in some way engaged.” However, the court concluded that those rights had not been violated because the government acted within the discretion afford by the statute that authorized the Plan. The court determined that to hold otherwise would invade the government’s policymaking function and run afoul of the separation of powers. Last month, the Irish Supreme Court agreed to hear FIE’s challenge to Ireland’s National Climate Plan, allowing the plaintiffs to leapfrog the Court of Appeal in a process reserved for exceptional circumstances. The high court’s willingness to take the case could presage a ruling akin to the Urgenda decision, ordering the government to take further action. Read more >>
As the Juliana panel put it, “[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular.” These cases are similar to Juliana in that each concluded that the plaintiffs’ rights may depend on a stable climate, but withheld relief. However, critically, in each case the government had adopted a comprehensive scheme to address climate change. While reasonable minds can disagree about whether each scheme was sufficient, unlike in Juliana, the plaintiffs could not argue that the government had simply failed to take action.
Letting Policymaking Run Its Course
Two recent decisions affirming discrete governmental decisions—as opposed to national climate policies—found that climate change threatens human and constitutional rights. Both also withheld relief after concluding that the injuries at issue were in the future, and could still be averted by policy action.
In January 2020 the UN Human Rights Committee denied a petition by a citizen of the island nation of Kirabati who claimed that by deporting him, New Zealand violated his right to life under Article 6 of the Covenant on Civil and Political Rights. The petitioner specifically asserted that sea level rise had caused serious health issues in his community. The Committee found that without meaningful national and international action on climate change, impacts could become extreme enough to threaten the right to life, making it unlawful for states receiving climate migrants to turn them away. This holding is significant because there is currently no legal framework to protect climate migrants. However, the Committee ultimately upheld New Zealand’s decision to deport the petitioner. Accepting the petitioner’s assertions that climate change would render Kiribati uninhabitable within ten to fifteen years, the Committee explained that there was sufficient time for intervening acts by the government of Kiribati—with international assistance—to protect its citizens. Read more >>
In the same month, the Borgarting Court of Appeal in Norway rejected green groups’ constitutional challenge to the issuance of a block of oil and gas leases for exploration the Barents Sea. The court held that Article 112 of the Norwegian Constitution—which protects the right to a healthy environment—grants substantive rights. The court further concluded that Article 112 applies to the environmental harms that the plaintiffs asserted, including lifecycle greenhouse gases associated with both the production and combustion of fossil fuels. Calling climate change “one of the greatest challenges humanity is facing” and a threat to human health, the court nonetheless reasoned that the challenged leases only allowed for exploration, and any production would take place ten to fifteen years in the future. More importantly, the court observed that the continuation of petroleum activities is an issue of ongoing debate in the legislature, and determined that “[t]he prioritisations in climate policy involve socio-economic and political balancing in the core area for what the court should be constrained in reviewing.” The court decided to let the policymaking process run its course, rather than issue a decision that would prevent foreseeable but somewhat distant oil and gas production.
The Norwegian case further demonstrates courts’ reticence to interfere with government’s policy choices. And both decisions indicate that adjudicatory bodies will hold off where policymakers could still take action to address the harms asserted. These cases, too, are distinguishable from Juliana in that the Ninth Circuit did not conclude that the plaintiffs’ alleged harms were too remote to warrant intervention. On the contrary, the panel found that at least some of the plaintiffs had already suffered injuries—including forced displacement from their homes. Nonetheless, because the court concluded that it could not provide a remedy to redress those injuries, the case was thrown out for lack of standing.
Viable Claim, Nonviable Class
Finally, a Canadian case concluded that climate change could threaten fundamental rights, but rejecting the plaintiffs’ claims on procedural grounds rather than out of deference to the separation of powers or policymaking discretion. In July 2019 the Montreal Superior Court dismissed a case asserting that Canada’s inaction on climate change violates rights protected by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. The green group ENVironnement JEUnesse brought the case on behalf of a proposed class of Quebec residents ages thirty-five and under. The plaintiffs sought punitive damages, a declaration that the government had violated their fundamental rights, and an order requiring remedial measures to curb climate change. Significantly, the court rejected the government’s argument that the plaintiffs’ claims were non-justiciable. In contrast to the Juliana panel, the court reasoned that it lacked sufficient facts to resolve the question of justiciability because “it is not demonstrated at this stage that the only way to end the violation of the protected rights would be through the exercise of legislative power.” Indeed, the dissenting judge in Juliana made a similar argument, writing, “[w]e must not get ahead of ourselves,” because at this stage “we need only hold that the trial court could fashion some sort of meaningful relief should plaintiffs prevail on the merits.” Ultimately, however, the ENVironnement JEUnesse court determined that the plaintiffs’ thirty-five-year age cap of class members was arbitrary. Without opining on whether the facts alleged would justify the relief sought, the court dismissed the case because “a class action is not the appropriate procedural vehicle.”
The Juliana opinion is not alone in holding that climate change may implicate constitutional or human rights, but that the court lacks the authority to fashion a remedy. However, unlike in the other cases discussed above, the Juliana court did not determine that the political branches did or could still act reasonably to protect those rights—rather, in the court’s view, the U.S. Constitutional system simply precludes the type of judicial remedy that the plaintiffs sought. Given the court’s recognition that “failure to change existing policy may hasten an environmental apocalypse” and its ultimate conclusion that “the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Juliana should be treated as a clarion call for the U.S. government to take meaningful action now.