(Bloomberg) — Climate change should be addressed by Congress and the electorate, not the courts, a federal appeals panel ruled in ending a lawsuit brought on behalf of young people who sought to force the government to draw up a plan to phase out fossil fuel emissions.
In a split decision Friday, the U.S. Court of Appeals in San Francisco agreed the 21 young people who sued presented compelling evidence that climate change is bringing “eve of destruction” nearer, but said it was beyond its power to order a remedial plan.
“Any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches,” the majority on the panel said.
The novel litigation filed in 2015 during the Obama administration had survived longer than most experts expected. Arguing that the government hasn’t done enough to protect future generations from global warming, the group of teens claimed they’ve been deprived of their constitutional right to a livable climate.
U.S. Circuit Court Judge Josephine L. Staton dissented, accusing her colleagues of throwing up their hands in the face of a calamity.
“It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses,” Staton wrote. “Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the nation.”
Philip Gregory, a lawyer representing the young people, said in a phone interview that his clients plan to immediately seek a rehearing before a full appeals court.
“Given the urgency of climate change, we’re going to get this matter before the full 9th Circuit as quickly as possible,” he said.
The majority and dissenting opinions both recognized his clients had submitted sufficient evidence to show injuries and that the federal government caused them, Gregory said.
“The only thing the majority found against us is that the federal courts can do nothing about a constitutional injury.”
The majority said that the court can’t “order, design, supervise or implement” the teens’ proposed remedies, and that they lacked legal “standing” to sue under Article III of the Constitution, which sets out the powers of the judicial branch.
“As the court recognized, Article III of the Constitution’s standing requirement is a vital limitation on the power of the federal courts,” Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s Environment division said in a statement. “This suit fell squarely outside the parameters of Article III.”
The ruling was also welcomed by the libertarian-leaning Competitive Enterprise Institute.
“The court correctly understood that a lawsuit aimed at imposing a national plan to eliminate fossil fuel emissions and reduce atmospheric carbon dioxide would push the court far beyond its constitutional powers,” CEI General Counsel Sam Kazman said in a statement. “It would require the court to substitute its judgment for that of Congress and the administration on an unprecedented scale.”
But Josh Galperin, who lectures on environmental law at the University of Pittsburgh, called the ruling disappointing, from both a climate policy perspective and a legal one.
“We need courts to be more imaginative,” Galperin said. “That doesn’t mean taking extra-legal steps, but it does mean thinking very carefully about the role of courts rather than just throwing up their hands and saying this is not a problem for courts to resolve, let Congress deal with it.”
After both the Obama and Trump administrations failed to quash the case, the U.S. Supreme Court in November said the Justice Department could again ask the appeals court in San Francisco to block the trial. The Supreme Court in July rejected a similar request to halt the lawsuit as premature but hinted at skepticism, saying the breadth of the youths’ claim was “striking.”
The case isn’t about whether climate change is real, but whether the government should have taken stronger action to curb its impact. The teens argued the U.S. Constitution confers a right to a climate system capable of sustaining human life. The government calls that “a previously unimagined constitutional right.”
The appellate judges, all appointed by President Barack Obama, agreed that the evidence left little doubt that climate change was occurring at an increasingly rapid pace and that the government had long understood the risk of fossil fuel use and increased carbon dioxide emissions. They also agreed that the government’s contribution to climate change “was not simply a result of inaction.”
However, the three judges were split on whether a federal court can resolve the plaintiffs’ claim that the government had deprived them of a “substantive constitutional right” to a climate system capable of sustaining human life.
To reduce the global consequences of climate change would require far more than a declaration that the government has violated the constitution or ordering the government to stop permitting, authorizing and subsidizing fossil fuel use, the majority said. It would require a fundamental transformation of the energy system of the U.S. or even of the entire industrial world, the judges said, referring to the testimony of the plaintiffs’ own experts.
“Any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches,” the majority said.
The appeal is In re: USA v. USDC-ORE, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The lower-court case is Juliana v. U.S.A., 15-cv-01517, U.S. District Court, District of Oregon (Eugene).
(Updates with DOJ comment)
To contact the reporters on this story: Edvard Pettersson in Los Angeles at email@example.com;Andrew Harris in federal court in Washington at firstname.lastname@example.org;Kartikay Mehrotra in San Francisco at email@example.com
To contact the editors responsible for this story: David Glovin at firstname.lastname@example.org, Joe Schneider
For more articles like this, please visit us at bloomberg.com
©2020 Bloomberg L.P.