Climate Change Litigation: Not a Question of Science? Don’t be so sure.
By Elias Feldman, CLS ’20
The parties in Juliana v. US agree that the lawsuit is not grounded in a “question of science.” On this, I think they are mistaken.
Last week saw the latest development in Juliana v. US, a lawsuit originally filed in 2015 by a group of 21 young plaintiffs alleging that affirmative actions taken by the federal government “have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”[1]The trial was expected to begin on October 29th, but the Supreme Court granted the Justice Department’s request for a temporary stay to halt the case. The Supreme Court denied the Trump administration’s application for stay on November 2nd, and on November 5th, the Department of Justice subsequently filed an application for stay with the District of Oregon, as well as a motion to stay and a writ of mandamus with the Ninth Circuit.[2]On November 8th, the Ninth Circuit granted a temporary stay in part. The suit remains stayed, but Judge Ann Aiken of the District of Oregon has indicated that she would issue a trial date once the Ninth Circuit lifts this latest temporary stay.[3]
The parties dispute the nature of the case. The nonprofit backing the lawsuit, Our Children’s Trust, maintains that “this is not an environmental case, it’s a civil rights case.”[4]The US government, on the other hand, sees the lawsuit as being, in the words of Acting Assistant Attorney General Jeffrey Wood, “a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.”[5]Although the parties dispute whether this suit is best thought of as involving a constitutional rights question or a separation of powers question, “both sides seem to agree that the case is not a question of the science.”[6]If this is accurate, I believe the parties are ignoring a crucial factual determination (or rather, a mixed question of law and fact) underlying the case: have the government’s policies contributed to a phenomenon which will, in fact, rob young Americans of a “climate system capable of sustaining human life” in a manner that deprives them of their constitutional rights to life and liberty?[7]To be sure, each side has identified issues that will eventually be critical to the case’s disposition. The scope of the plaintiffs’ constitutional rights to life and liberty is a necessary legal determination the courts will have to make, as is whether the remedy sought by the plaintiff—compelling the US government to “take action to fight climate change”—would constitute “an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy” contrary to separation of power interests.[8]But these questions are both predicated on the factual determination of whether the threatened future injury is probable enough to give the plaintiffs standing to bring the suit at all. As Professor Hessick explains, “the Supreme Court has held that Article III authorizes federal courts to hear claims alleging future injury only when the threatened injury has a real chance of occurring.”[9]Indeed, all injuries have some probability of occurring, so creating justiciability for any prospective harm that could possibly happen would “effectively empower courts to hear hypothetical disputes” in a manner contrary to the judiciary’s Article III mandate to resolve only real cases and controversies.[10]How speculative a future injury is determines whether it is justiciable or not.[11]
Given the politically charged nature of the climate change debate, how much of a threat this phenomenon is as a factual matter is a controversial determination the court, in its capacity as factfinder, will have to make. The Trump administration is openly hostile to climate science identifying climate change as an environmental concern, with the President previously calling global warming a “hoax,” announcing a withdrawal of the United States from the 2015 Paris climate accord, and removing references to “global warming” and “climate change” from government websites.[12]Concern about this phenomenon is sharply split down party lines: 91% of Democrats worry a great deal about global warming, compared to only 33% of Republicans. 67% of Republicans worry “only a little or not at all” about it.[13]These findings and others highlight how Democrats generally view global warming as a very serious problem, whereas Republicans are generally skeptical that it is a man-made problem at all.[14]The court will have to take one position or the other to resolve this question of standing, and will likely investigate whether the threatened injury claimed by the plaintiffs, as a factual matter, has a “real chance” of occurring.
Such a controversial determination of fact by a federal court is not unprecedented. Far more controversial was the Supreme Court’s determination in Roe v. Wade that a fetus, under “historical understanding and practice, the structure of the Constitution, and the jurisprudence of the Court,” is not a person of the kind protected under the Fourteenth Amendment. Justice Blackmun made more of a legal determination there than a factual one, but in effect he codified a factual proposition that was at that time, and still is, at odds with the beliefs of many Americans. The factual determination the court would have to make determining whether or not global warming is a real phenomenon is far less philosophical and more scientific. In fact, the consensus of over 97% of actively publishing climate scientists is that climate-warming trends pose “a growing threat to society.”[15]We can reasonably expect the court to decide whether it will take this assessment as fact, despite widespread opinion to the contrary, and use it to make a legal determination. This would certainly be controversial but would not require the judiciary to encroach upon the legislature’s domain any more than it has done in the past.
[1]Umair Irfan, A major climate change lawsuit is on hold. Again., Vox(accessed November 13, 2018), https://www.vox.com/2018/11/2/18029146/climate-change-lawsuit-children-scotus-supreme-court-juliana, citing to Juliana v. United States, 217 F. Supp. 3d 1224, 1261 (Ore. 2016).
[2]Juliana v. US – Climate Lawsuit, Our Children’s Trust(accessed November 13, 2018), https://www.ourchildrenstrust.org/us/federal-lawsuit/.
[3]Id.
[4]Ifran, supranote 1.
[5]Id.
[6]Id.
[7]Id.
[8]Id.
[9]F. Andrew Hessick, Probablistic Standing, 106 Nw. U. L. Rev.55, 57 (2012).
[10]Id., 56-57.
[11]Id., 57.
[12]Megan Brenan and Lydia Saad, Global Warming Concern Steady Despite Some Partisan Shifts, Gallup(accessed November 13, 2018), https://news.gallup.com/poll/231530/global-warming-concern-steady-despite-partisan-shifts.aspx.
[13]Id.
[14]Id.
[15]Scientific consensus: Earth’s climate is warming, NASA Global Climate Change: Vital Signs of the Planet(accessed November 13, 2018), https://climate.nasa.gov/scientific-consensus/.