By Eric Rothschild and Steve Harvey

On Friday, January 17, 2020, a divided panel of the U.S. Court of Appeals for the 9th Circuit dismissed the highly publicized children’s climate change lawsuit known as Juliana v. United States because the child plaintiffs lacked standing to bring the lawsuit. The plaintiffs allege that the government by its affirmative actions that contribute to causing climate change (e.g., subsidies, tax provisions, leases on federal land) are violating their 5th Amendment right to life, liberty, and property. They sought declaratory and injunctive relief, including an order requiring the U.S. government “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.” The case survived a motion to dismiss and was ready for trial when the government sought a writ of mandamus and a stay in the Supreme Court. Meanwhile the district court granted summary judgment in part but otherwise denied it and permitted the main allegations to go to trial.

On appeal of the summary judgment decision, the panel held that the children lacked standing on the grounds that their injuries are not redressable by a federal court. It rejected the idea of simply declaring the rights of the parties without granting any injunctive relief because it said that declaration alone would be unlikely to mitigate the plaintiffs’ injuries from climate change. It rejected the argument for an injunction on the grounds that the case raised policy decisions that are committed to the legislative and executive branches and that it lacked any “limited and precise” standard to decide the plaintiffs’ claim (explicitly borrowing a concept from a 2019 Supreme Court case permitting gerrymandering). It acknowledged that “the political branches have to date been largely deaf to the pleas of the plaintiffs,” but held that the court had no power to act, regardless of the force of the plaintiffs’ argument for preventing devastating consequences from the government’s current course of action on climate change.

In dissent, district judge Josephine L. Staton, sitting by designation, offered a powerful critique of the majority’s decision. In response to the assertion that any relief would be meaningless or “just a drop in the bucket,” she responded: “But we are perilously close to an overflowing bucket. These final drops matter. A lot.”

Judge Staton also criticized the majority for its deference to the political branches of government “even if those branches walk the Nation over a cliff.” For Judge Staton, the unprecedented urgency and enormity of the relief requested by plaintiffs to address the constitutional violation was not cause for courts to shrink away from addressing the claims, but the strongest rationale for it. While the nation’s response to its greatest previous injustice was too long delayed, the aggrieved “could take solace that ‘the arc of the moral universe is long, but bends toward justice’”—and “that possibility provides hope for future generations.” But action delayed on climate will be justice denied for these young plaintiffs—whose “claims are based on science, specifically, an impending point of no return.”

This issue of standing to be heard on the constitutional implications of climate change is not settled yet. The Plaintiffs and their attorneys will petition for a review en banc by the entire 9th Circuit and eventually it will likely be addressed by the Supreme Court. Stated broadly, the issue is whether judge-made standing doctrines prevents the federal judiciary from addressing the most consequential civil rights issue ever presented. Does the United States Constitution impose limits on the federal governments’ fossil-fuel promoting activities if those activities endanger all of its citizens? For the good of all, the answer to the question must be yes.

In the words of Thomas Jefferson: “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

But whether the answer is yes or no, the federal courts should consider and decide it. That decision will ultimately need to be made by the Supreme Court, but it should start at a trial like the one that was scheduled in the Juliana case. Anything less is an abdication of judicial responsibility commensurate with the abdication of responsibility by the legislative and executive branches that gave rise to the plaintiffs’ case in the first place.