9th Circuit dismisses climate change lawsuit brought by kids

Back in 2015 a group called Our Children’s Trust filed a climate change lawsuit on behalf of a group of kids and teens. The lawsuit asked the court to order the Obama administration (at the time it was filed) to take action to prevent climate change. Today a panel of three Obama-appointed judges dismissed the lawsuit in a 2-1 decision:

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said the plaintiffs, who were 8 to 19 when the lawsuit began in 2015, lacked legal standing to sue the United States.

Circuit Judge Andrew Hurwitz said the majority reached its conclusion “reluctantly,” given the “compelling” evidence that the government had long promoted fossil fuels despite knowing they could cause catastrophic climate change, and that failing to change policies could hasten an “environmental apocalypse.”…

Hurwitz said the case left “little basis for denying that climate change is occurring at an increasingly rapid pace,” but that addressing it required “complex policy decisions entrusted, for better or worse, to the wisdom and discretion” of the White House and Congress.

That last bit is the one that led the court to dismiss the case for standing, i.e. did the court have constitutional authority to redress the grievances in this case. Two of the judges concluded the court did not.

The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, see, e.g., 30 U.S.C. § 201 (authorizing the Secretary of the Interior to lease land for coal mining), but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands…

There 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. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, 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.

This was a point which the government made months ago:

Plaintiffs did not ask the district court to resolve anything resembling the kind of dispute that gave rise to jurisdiction at common law or the adoption of Article III; Plaintiffs instead asked the district court to review all of the representative branches’ programs and regulatory decisions relating to climate change over the past several decades and then pass upon their constitutionality in the aggregate. No federal court has the power to perform such a sweeping policy review, and no federal court has ever done anything close to what Plaintiffs seek here.

But one of the judges on the panel, Judge Josephine L. Staton of the Central District of California, dissented and argued the court could have provided some relief. The judge’s language on this point was, shall we say, impassioned. “In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity,” the judge wrote. She continued, “It is as if an asteroid were barreling toward Earth and the
government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. ”

60 Minutes did a piece on the lawsuit last year which you can watch here. And here’s Kelsey Juliana, the oldest of the kids on whose behalf the case was originally filed, discussing it in September 2018: