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Water Law News: Juliana v. United States

climate-change-graphic-hand-holding-globeIt’s been a difficult week for people who care about climate change. It appears that U.S. climate policy will soon reverse course, and that the administration-elect may steal the planet from future generations. It is therefore very welcome news to see a court squarely ruling that U.S. citizens – children in particular – have a fundamental constitutional right to a planet that is capable of supporting human life.

Our Children’s Trust is a non-profit organization in Eugene, Oregon, that has been bringing climate change litigation around the nation. In these lawsuits, children are the plaintiffs and they are suing the government for failure to take action to secure a healthy environment for their future.   The U.S. Constitutional right to “life, liberty and happiness,” and the Public Trust Doctrine are central arguments in these lawsuits.

One such lawsuit is Kelsey Juliana v. United States, and is pending in the Oregon federal court, Judge Ann Aiken presiding.   Yesterday Judge Aiken made a major ruling in the case.

Juliana v. U.S. is an important case. It’s a lawsuit brought by 21 children against the President, the Council on Environmental Quality, the Office of Management and Budget, the Office of Science and Technology Policy, the Departments of Interior, Energy, Agriculture, Transportation, Commerce, Defense, and State, and the Environmental Protection Agency. The National Assn. of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute have intervened on the side of the federal government.

The Juliana plaintiffs allege claims that get at the heart of federal climate policy and actions. The lawsuit challenges

decisions like whether and to what extent to regulate CO2 emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, how much to charge for use of those lands, whether to give tax breaks to the fossil fuel industry, whether to subsidize or directly fund that industry, whether to fund the construction of fossil fuel infrastructure such as natural gas pipelines at home and abroad, whether to permit the import and export of fossil fuels from and to the United States, and whether to authorize new marine coal terminal projects. Plaintiffs assert defendants’ decisions on these topics have substantially caused the planet to warm and the oceans to rise.

The Juliana lawsuit is at the first stage of the proceedings. The U.S. defendants and intervenors filed a motion to dismiss, arguing that the plaintiffs have failed to state the kind of claim that the court can decide. Because the Court denied the motion to dismiss, the case will now proceed to trial.

First, the Court held that the Juliana claims are not simply “political questions” that courts should refrain from deciding. Rather, the plaintiffs

ask the Court to declare the United States’ current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of the United States CO2 emissions, and use that inventory 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 Court ruled that plaintiffs have standing to sue based on specific harms they are experiencing as a result of climate change. One plaintiff has asthma that is aggravated by forest fires. Another’s family had to install an irrigation system because of drought. One of the plaintiffs lives in Louisiana and her home was inundated in the recent floods in that area.

On the merits, Judge Aiken ruled that citizens have a “right to a climate that is capable of sustaining human life” and that this is a fundamental due process right that emanates from the U.S. Constitution. “A stable climate system is quite literally the foundation of society, without which there would be neither civilization or progress.”   The Court ruled that where a lawsuit alleges that:

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.

Finally, with respect to the Public Trust Doctrine, Judge Aiken first reviewed the history of the doctrine, from ancient Roman law to the present. The Institutes of Justinian first codified the Public Trust in 530 CE (AD):

The following things are by natural law common to all: the air, running water, the sea, and consequently the seashore.

Government has a duty to protect these common resources for the benefit of future generations.

With respect to core resources, the sovereign’s public trust obligations prevent it from depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens. . . . The [] trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to protect the trust property from damage or destruction. The trustee owes this duty equally to both current and future beneficiaries of the trust.’

The Juliana plaintiffs asked the Court to recognize that the Public Trust Doctrine protects the atmosphere – the first natural resource profoundly affected by climate change. The Court ruled that it need not reach that question, because climate change is clearly affecting a more traditional public trust resource, the territorial seas of the United States.

Time and again, the Supreme Court has held that the public trust doctrine applies to lands beneath tidal waters. . . . [U.S.] authority over the [sea] can no more be abdicated than any of the other great powers of the Federal Government. . . . Because a number of the plaintiffs’ injuries relate to the effects of ocean acidification and rising ocean temperatures, they have adequately alleged harm to public trust assets.

In declining to rule on the more novel question of an atmospheric trust, the Court noted that there is authority for the idea that the Public Trust Doctrine applies to protect the atmosphere. One such authority is the Nov. 2015 decision of King County Judge Hollis Hill, who ruled in case brought by Seattle-area children (Foster v. WA Dept. of Ecology) that:

It misses the point to mechanically rely on what has been identified as a public trust asset in the past because ‘the navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that [greenhouse gas] emissions do not affect navigable waters is nonsensical.’

Judge Aiken also cited a recent ruling from the Pennsylvania court (Robinson Township v. Pennsylvania) that:

The concept of public natural resources includes not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora and fauna (including fish) that are outside the scope of purely private property.

The judge went on to rule that the Public Trust Doctrine applies to the federal government, that it is not displaced by federal statutes, and that rights under the public trust are enforceable by federal courts. The judge concluded:

This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions . . . have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty. . . .

Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. . . .

“A strong and independent judiciary is the cornerstone of our liberties.” [Quoting Sen. Mark Hatfield]. Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.

Trial will likely be scheduled for 2017.