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Is US government inaction on climate change a breach of the constitution?

29 January 2020 | US
Legal Briefings – By Jay Leary, Ben Rubinstein and Hannah Whitton

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A United States court has recently been asked to consider whether the federal government’s inaction in relation to climate change breaches the United States constitution. The court (by a majority of two to one) reluctantly found that they did not have jurisdiction to order the government to redress that inaction. The plaintiffs have indicated their intention to appeal the decision. 

The US decision follows a decision of The Netherland’s highest court to order the Dutch government to reduce greenhouse gas emissions by 25% from 1990 levels by the end of 2020. This was on the basis that to do otherwise would breach a binding international convention to which The Netherlands are a party.

These cases are illustrative of a growing body of claims being made against governments and companies in relation to climate change. It is interesting to note that in both cases the government defendants accepted evidence of climate change and its effects.

Further details of the US decision may be found below.

Overview

  • In Juliana v United States the majority of a Court of Appeal (the Court) reversed the decision of the District Court of Oregon by finding that the plaintiffs did not have standing, pursuant to Article III of the United States Constitution, to bring proceedings against the United States government for a purported breach of the constitutional right to a ‘climate system capable of sustaining human life’ as the alleged injuries were deemed to be not redressable by the Court.
  • The Court accepted significant expert evidence in relation to the causes and effects of climate change and the United States Government’s contribution to global climate change through affirmative policy action including tax treatment, export policies and other subsidies in the fossil fuels industry.
  • The Plaintiffs’ evidence that climate change was affecting, and will continue to affect, the Plaintiffs personally, by causing concrete and particularised injuries such as having to leave their homes due to flooding and water scarcity, was accepted by the Court.
  • The Court held that there was a causal link between the injuries suffered by the Plaintiffs and the fossil fuel emissions policies of the United States federal Government over the last 50 years.
  • The majority of the Court held that the relief sought by the Plaintiffs for the Court to order, design and evaluate the remedial climate change policy plan required the Court to make impermissible decisions of policy, which is designated to the executive and legislature, not the judiciary. The dissenting opinion challenged this finding and argued that it is the Court’s duty to step in to protect fundamental rights and hear cases of widespread concern.
  • The Plaintiffs have announced their intention to appeal the decision.

Key issue

Whether an Article III Court, being a federal Court of the United States, can issue an order requiring the government to develop a plan to phase out fossil fuel emissions and reduce excess atmospheric carbon dioxide.

Summary of prior proceedings

The proceedings were brought by twenty-one young citizens, an environmental focussed organisation and a ‘representative of future generations’ (the Plaintiffs) against the President of the United States, the United States and all federal agencies (the Government).

The Plaintiffs claim that they have suffered various climate change related injuries, which are caused by the Government  continuing to permit, authorise and subsidise the use of fossil fuels, despite being aware of the associated risks. The injuries claimed include: psychological harm, impairment to recreational interest, aggravated medical conditions, damage to property, being forced to leave property and separation from relatives. The Plaintiffs sought a declaration that the Government was in violation of the Constitution and an injunction requiring the Government to cease fossil fuel use and prepare a plan, that is to be judicially reviewed, to reduce harmful emissions.

The District Court did not agree that the Government’s claim that the proceedings should be dismissed due to the Plaintiffs failing to satisfy the standing requirements for summary judgment. The District Court held that the Plaintiffs had standing and had raised sufficient evidence as to the justiciable question of whether the Fifth Amendment right to a ‘climate system capable of sustaining human life’ was violated.

Majority Opinion of the Court of Appeal

The majority of the Court reversed the orders issued by the District Court, finding that the Plaintiffs lacked standing to bring the proceedings. The Court held that whilst the relief sought by the Plaintiffs may ‘goad the political branches into action’, the Plaintiffs’ case ‘must be made to the political branches or to the electorate at large’.

Accepted evidence regarding climate change

The Court accepted the following expert evidence, which was not disputed by the Government, regarding the use of fossil fuels in the United States:

  • Since the Industrial Age atmospheric carbon dioxide has reached levels, which have not been experienced in almost three million years. The carbon levels have been rising since the last Ice Age; however, have accelerated to 100 times faster and half of the increase has occurred in the last 40 years.
  • The sharp rise in carbon levels is attributable to fossil fuel combustion and ‘will wreak havoc on the Earth’s climate if unchecked’. This has led to rising temperatures, which is melting the polar ice caps and may cause sea levels to rise 15 to 30 feet by 2100.
  • The climate change problem is approaching ‘the point of no return’. If no action is taken, the climate will ‘bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies’.
  • The United States fossil fuel emissions have continued to increase despite the Government acknowledging the risks associated with fossil fuel use. The United States Government’s contribution to global climate change is not the result of the Government failing to act, rather because of affirmative action which has promoting the use of fossil fuels including through tax policy, import and export permits and subsidies.

Article III standing

The Court held that the Plaintiffs did not satisfy the third requirement for Article III standing to validly bring the proceedings. The presiding test for standing pursuant to Article III of the United States Constitution being that the Plaintiff has a concrete and particularised injury that, was caused by the challenged conduct and is likely redressable by a favourable judicial decision.  

Concrete and particularised injury

  • The Court held that the Plaintiffs claimed concentre and particularised injuries, which are not conjectural or hypothetical. Examples that were noted were one Plaintiff who had to leave her home because of water scarcity and another Plaintiff who had to evacuate his coastal home multiple times because of flooding. The fact that the climate change affects everyone was immaterial in the eyes of the Court to the question of whether the Plaintiffs’ injuries were concrete and personal.

Causation

  • It was held that the Plaintiffs’ injuries were and are caused by carbon emissions from fossil fuel production, extraction and transport. A significant portion of the emissions which occur in the United States. The majority found that there was unlikely to be a genuine factual dispute as to whether the federal policies promoting the use of fossil fuels over the last 50 years contributed to the Plaintiffs’ injuries.

Whether the injury is redressable by an Article III Court

  • It was held that the Plaintiffs’ sole claim that the Government has deprived them of a substantive right under the United States Constitution to a ‘climate system capable of sustaining human life’ is not redressable by the Court.
  • The declaration and injunction sought were deemed not substantially likely to redress the Plaintiffs’ injuries in that: the declaration will not affect the concrete injuries suffered and that by the Plaintiffs’ evidence an order stopping the affirmative fossil fuel action is not sufficient to stop ‘catastrophic climate change' or redress their injuries. The argument that the Plaintiffs’ injuries would be to some extent ameliorated was not accepted by the Court.
  • The Court further held that it was beyond its power to order, design and supervise the requested remedial plan. The Court noted that the relief that was sought required the Court to determine complex policy decisions, which implicated the separation of powers. It was stated that even if broad relief was granted, this required extensive ongoing supervision and enforcement action by the Court, which also involved acts of policy-making outside the Court’s jurisdiction.

Dissenting opinion 

District Judge Stanton in dissent, affirmed the District Court’s decision stating that the majority had ‘throw[n] up their hands’ in finding that the Plaintiffs’ did not have standing to challenge the Government’s conduct.

Judge Stanton in finding in favour of the Plaintiffs, made the following specific findings:

Findings

  • There exists under the United States Constitution a right to ‘the perpetuity of the Republic’, which prohibits the wilful dissolution of the Republic. This right is implicit and historically rooted and is independently enforceable by the Courts.
  • The Plaintiffs have a right to be free from irreversible and catastrophic climate change. The Plaintiffs suffer an ongoing injury and practical redressability is therefore not measured by the ability to completely stop climate change. Rather, a ‘perceptible reduction in the advance of climate change is sufficient to redress the plaintiff’s climate change-induced harms’.
  • There is a danger in too closely respecting the separation of powers in that it reduces the effectiveness of the checks and balances that the system promotes. District Judge Stanton acknowledged that while the evaluation and supervision of government policy is a ‘daunting task’, it is one which the Court is constitutionally empowered to, and must, undertake.

What are the implications of this decision?

Whilst the majority of the Court declined to evaluate and supervise government climate change policy, the dissenting opinion indicates that there may be scope for courts to issue these types of orders in the future. If awarded, the Government will be required to determine how to adjust their climate change policies.

Climate change claims, albeit based on different theories than the Constitutional ones that are being pursued against states such as that in the Juliana case, are likely to be brought in the future against companies in high emissions sectors such as mining and oil and gas. Indeed, there already are several pending lawsuits like this in the US brought by governments and private actors against companies seeking billions in compensation for the effects of climate change. Herbert Smith Freehills is acting in a number of these cases.

Click here to read our report - Climate change: Succeed in a lower-carbon future

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