Developments in Climate Change Litigation in the United States

Prof. John H. Minan
Professor of Law – emeritus
School of Law, University of San Diego
California – USA


This research is relevant to the following theme stated in the call for papers: Climate Change and State Responsibility in cases of environmental disasters, and fits within the subcategory of the role of the judiciary.
The topic of climate change from greenhouse gases (GHG) is critically important. The Secretary of General of the United Nations has called it “the defining issue of our time” and a direct existential threat. But the federal government in the United States has failed to prioritize climate change as a problem requiring immediate attention. In fact, the Trump administration affirmatively rejects the notion of climate change and Congress has been incapable of dealing with the problem. As a result, environmental activists have turned to the courts to demand action on climate change.
Of all of the climate change cases working their way through the federal court system none is more interesting or potentially life changing than Juliana v. United States, which is the focus of this research. When the lawsuit began hardly anyone took the case seriously, including the government’s lawyers. Now that the United States Supreme Court has rejected the government’s motions to dismiss the case on two separate occasions, Juliana is attracting considerable legal and public attention. On March 3, 2019, it was the focus of a segment on the respected CBS TV program 60 Minutes. The case has also been discussed in numerous legal publications.
The plaintiffs in Juliana are young activists who are all age 20 or younger. The plaintiffs argue that the federal government is endangering their future by depriving them of the right to a sustainable environment. According to the judge hearing the case, “This is no ordinary law suit.”
Part I provides an Introduction to the topic of climate change and its observable impacts. Part II (The Scope of Judicial Review and the Political Question Doctrine) explores whether the courts are the proper forum for climate change questions. The political question doctrine is based on the jurisprudential principle that questions involving policy should be left to the legislature or executive branch of government, and not the judiciary.
Part III (Standing) examines whether the plaintiffs have standing to pursue their climate change complaint. This requires an examination of the “case or controversy” requirement of Article III of the United States Constitution and the applicable Supreme Court requirements of injury, traceability, and redressability. Taken together, Parts II and III provide a procedural road map to future climate change litigants, which is important because prior climate change cases have been routinely dismissed on procedural grounds.
Part IV (Public Trust and the Constitution) focuses on the substantive legal theories argued by the plaintiffs. The public trust doctrine has been traditionally limited to tidelands and navigable waters. The discussion considers the argument for a major expansion of the doctrine. The constitutional claim is based on substantive due process, namely the unalienable right to a climate system sustaining human life. This right is fundamental to an ordered liberty and rooted in the United States’ history and tradition. The judge hearing the case observed “Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society”. The public trust and the due process arguments persuasively support the substantive claim for a declaratory judgment to require the federal government to prepare a climate change action plan. The implementation of the plan would require a massive change of the use of fossil fuels in the United States and have global repercussions.
Part V (Conclusion) reveals that the final chapter of the Juliana case has not been written. The fact that the court will not rule on the substantive claims until June 2019 will be unsatisfying to some. But the case has already made an indelible mark on climate change litigation by overcoming numerous motions to dismiss on the procedural grounds advanced by the federal government. Juliana has set the procedural guideposts for future climate change litigation.
The plaintiffs have amassed a staggering and persuasive body of evidence over a fifty-year period to support their legal theories, which are both interesting and unique. The case is a testament to the power of young activists seeking to use the courts to protect themselves and future generations from the adverse effects of climate change. The evidence supports the conclusion that the climate crisis is real and must be taken with a sense of urgency.

Keywords: Climate, Developments, Impacts, Litigation, Theories.

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