Climate Change Comes to the Ninth Circuit: Juliana v. U.s. Tests a Novel Due Process Claim With Far-reaching Implications for Environmental Litigation

• Publication year: 2019
• Author: By Douglas A. Fretty

Climate Change Comes to the Ninth Circuit: Juliana v. U.S. Tests a Novel Due Process Claim with Far-Reaching Implications for Environmental Litigation

By Douglas A. Fretty

Douglas Fretty is an associate at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., where he practices civil and appellate litigation.

On June 4, 2019, a Ninth Circuit panel heard oral argument in the closely-watched environmental case Juliana v. U.S. (No. 18-36082). The 21 plaintiffs in Juliana, ranging in age from 12 to 23, seek an order compelling a roster of federal agencies to "draw down" U.S. fossil-fuel consumption in this century, to avert the worst effects of climate change. Represented by the environmental group Earth Guardians, plaintiffs rest their case on an as-yet unprecedented theory: that the executive branch's promotion of fossil-fuel exploitation constitutes a "state-created danger," violating the young plaintiffs' substantive Due Process right to "a climate system capable of sustaining life."

The plaintiffs survived their first hurdle when District Court Judge Ann Aiken (D.Or.) denied the federal defendants' motion to dismiss and motion for summary judgment, and ordered a 50-day trial on the merits. (Juliana v. U.S. (D.Or. 2016) 217 F.Supp.3d 1224; Juliana v. U.S. (D.Or. 2018) 339 F.Supp.3d 1062.) But the stage was set for the current appellate battle when the Supreme Court denied as premature the government's application for a stay of the lawsuit, while describing the "breadth" of plaintiffs' claims as "striking" and stating that "the justiciability of those claims presents substantial grounds for difference of opinion." (U.S. v. U.S. Dist. Ct. for Dist. of Or. (2018) ___ U.S. ___ [139 S. Ct. 1].) And in February 2019, the district court in Clean Air Council v. U.S. (E.D.Pa. 2019) 362 F.Supp.3d 237, 250-251, rejected the same substantive Due Process theory that the Juliana plaintiffs assert.

The Ninth Circuit panel (Judges Andrew Hurwitz and Mary Murguia, and District Court Judge Josephine Staton) is now reviewing the district court's rulings on an interlocutory appeal. (The June 4th oral argument is available at: www.youtube.com/watch?v=6P-GCSWm86OI&t=2607s.) Two of the judges seemed sympathetic to plaintiffs' case and asked questions suggesting that they might be exploring a (perhaps narrower) way to affirm Judge Aiken's orders. If that happens, Juliana could result in the first-ever trial over whether individuals harmed by climate change may obtain relief under the U.S. Constitution.

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The case, then, presents a fascinating clinic in high-stakes environmental litigation: Earth Guardians may have hit upon the right combination of plaintiffs, defendants, claim theory, and remedy to avoid the fates of past climate-change claimants. Even so, the hearing exposed the potential limits of any case that seeks to change public policy through constitutional claims, as the judges struggled to accept that the judiciary has the authority to issue the sweeping injunction that plaintiffs demand. Regardless of how the panel rules, Juliana offers vivid lessons for litigators who find themselves embroiled in environmental and constitutional contests.

Lessons for Constitutional Claimants: Carefully Choose Your Plaintiffs, Defendants, Claim, and Remedies

Findingthe RightPlaintiffs: Probably the most-common stumbling block in environmental suits is Article III standing. In the prototypical case, environmentalists outraged by some environmental injury fail to show that they have suffered a harm that is "concrete and particularized," "'fairly traceable to'" the defendants' conduct, and "redress[able]" by the court. (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560, 590.) As the Supreme Court has long held, a person's general interest in environmental quality does not satisfy this three-prong test.

According to Judge Aiken, the young plaintiffs here are different. They come predominantly from communities considered vulnerable to sea level rise, ocean acidification, and freshwater contamination. Their homes have been flooded, their drinking water degraded by salt water, and their indigenous cultural practices disrupted. Such careful client recruitment strengthens Earth Guardians' theory that plaintiffs' communities "will likely be uninhabitable" during their lifetimes because of rapid climate change. (Juliana, supra, 339 F.Supp.3d at p. 1093.) As for the causation and redressability prongs of standing, Earth Guardians seems to have cracked the problem by choosing the right defendants to sue.

Finding the Right Defendants: Until recently, environmentalists asserting a climate-change theory favored suing fossil-fuel industry defendants, or state agencies that regulate a handful of industry players. Such cases tend to fail because environmentalists cannot...