In 2015, 21 American youth filed the internationally-renown case Juliana v. United States, claiming that affirmative acts of the federal government violate their constitutional rights and the rights of future generations. Juliana is science-based, seeking to halt state-created danger and other constitutional harms and to enforce legal rights to a climate system capable of sustaining life. The response of the Biden-Harris Administration and the Supreme Court to Juliana will signal to the world whether the U.S. federal government is serious about grounding long-term solutions to the climate crisis in our Constitution.

Why did these young Plaintiffs bring this lawsuit? The federal government has – for decades – engaged in creating, controlling, and perpetuating a national fossil fuel-based energy system, despite long-standing knowledge that these actions result in destruction to our Nation.

Why a lawsuit instead of seeking climate legislation or policymaking? First, children cannot vote and have no influence over lawmakers. Even more importantly, it is the role of the judiciary to protect constitutional rights. Third, while legislation or executive orders may have an impact, they can be substantially watered down, or undone, as the make-up of Congress or the White House changes. Protection of constitutional rights should never be subject to the shifting winds of political ideology. Finally, it is the legislative and executive branches themselves who are causing harm. Protection from these harms should come from the judiciary, not those who are themselves the perpetrators (and thus have little incentive to change their actions).

What do these youth want the court to do? First, the youth request an order declaring that children are entitled to fundamental rights and equal protection under law. They also want, based on the scientific evidence, a constitutional standard for the protection of life and liberty, as well as a declaratory judgment that government acts are unconstitutional if they knowingly result in the destruction of the climate. After hearing their scientific and economic experts, the plaintiffs believe a judge will order the government to prepare and implement a climate recovery plan to hit science-based targets, like limiting carbon dioxide emissions to 350 parts per million. The court also should issue an injunction stopping new fossil fuel leasing of federal public lands, as well as federal approvals for new fossil fuel infrastructure and economic discounting of children’s lives through the use of a damaging discount rate. Finally, the court should retain jurisdiction over the case both to monitor compliance and to refine the court-ordered remedy as needed.

The youth’s requested remedies are typical for major constitutional litigation where the U.S. Supreme Court both issued declaratory relief and approved broad structural, systemic judicial remedies. Similar civil rights cases include public school desegregation (Brown v. Board); public housing desegregation (Hills v. Gautreaux); and the California prison litigation (Brown v. Plata).

The remedies sought in these landmark cases are the same general remedies sought in Juliana: issuing declaratory relief and ordering the defendants to propose and implement a plan, with the court retaining jurisdiction, all on a national-scale. Importantly, the claims in Juliana are not that the government must eliminate changes in the climate, but that it must refrain from unconstitutional actions that exacerbate the climate crisis to the point of causing actual injuries to Plaintiffs. The youth do not ask courts to write the policies. They ask the judiciary to establish the boundaries of the constitutional right and ensure the government takes actions that stay within those boundaries.

On November 10, 2016, U.S. District Court Judge Aiken, in denying motions to dismiss filed by the Obama Administration, wrote: “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society . . . . ” Judge Aiken continued: “Where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.” She concluded: “To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”

On January 17, 2020, in response to the Trump Administration’s DOJ argument that the youth did not have standing, a three-judge panel of the Ninth Circuit Court of Appeals issued a decision setting forth several important legal rulings before concluding that the court lacked jurisdiction to hear the case. For example, the panel found the youth had established causation because the U.S. government helped facilitate the climate crisis through its use of fossil fuel leases and subsidies. Among their findings:

  • “A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”
  • “Copious expert evidence establishes that this unprecedented rise [in CO2 levels from 280 to 410 ppm] stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.”
  • “The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions.”
  • “The problem is approaching ‘the point of no return.’  Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.”

Yet two judges “reluctantly” concluded: “The [children’s] impressive case for redress must be presented to the political branches of government.” “[O]r to the electorate at large . . . through the ballot box.”

The dissenting member of the panel, Judge Staton, voiced her distress about the importance of the relief sought by the youth: “Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province.”

Today, the youth plaintiffs are pursuing two paths towards justice: filing a petition seeking review by the U.S. Supreme Court and seeking settlement talks with the Biden-Harris Administration.

Their Supreme Court petition will argue that a central component of our democracy since Marbury v. Madison in 1803 is the ability of our judiciary to declare what the law is and resolve real controversies brought by citizens. By finding “it is beyond the power of an Article III court to order . . . the plaintiffs’ requested remedial plan,” the Ninth Circuit decision in Juliana deprives people of the ability to seek a resolution of a real controversy with their government and hear a controversy about harm to the health and safety of children, going against Supreme Court precedent.

Simultaneously, the Biden-Harris Administration can explore a just settlement with Plaintiffs. They have become the third administration to be defendants in Juliana. Instead of fighting the youth like Obama and Trump did, the Biden-Harris Administration should change their DOJ’s approach to stand for the constitutional rights of children and environmental justice, and work with the youth to come to a resolution based on technically and economically feasible climate solutions. Biden’s DOJ should change course and join the Juliana plaintiffs in saying a declaration of constitutional rights is well within the Article III authority of federal courts and the 1934 Declaratory Judgment Act.

President Biden’s recent Executive Orders to immediately start addressing the harms of climate change illustrate the feasibility of Plaintiffs’ requested relief that the Defendants can listen to scientific experts and engage in comprehensive planning to “combat the climate crisis” with “a government-wide approach.” Yet while the Biden EOs are a start, the courts must ensure a constitutional mandate is set to protect the youth’s interests from being in jeopardy every time there is a change in presidential administrations or legislative majority. This issue is constitutional: the fundamental rights of young Americans to live safely. A judicial declaration that the government is violating the Constitution, even if the judgment does not identify a solution, provides meaningful redress in permanently altering the challenged conduct.

The world is watching what happens to Juliana. This case poses a test for the new administration given President Biden’s campaign pledge to “strategically support ongoing plaintiff-driven climate litigation” and his promise to create a new Environmental & Climate Justice Division within the Justice Department.

The issue in Juliana right now is not just the climate crisis. It is the role of the federal courts in constitutional cases. The evidence is uncontested: America’s children are being harmed by deliberate acts of the federal government and cannot keep waiting for a political system that is failing them. 

The climate crisis looms so large. Which of our branches has the courage to “secure the Blessings of Liberty to [our youth] and our Posterity”: this President or this Supreme Court?

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