On November 10, 2016, Judge Ann Aiken, a federal district judge in Oregon, issued a remarkable environmental law decision in which she found that a climate system “capable of sustaining human life” is a fundamental constitutional right.[1] Juliana v. United States challenges the constitutionality of the United States’ decades-long policy on climate change.[2] The plaintiffs, a group of 21 children and young adults, sued the United States and various government officials[3] alleging that they have known for more than five decades “that the carbon dioxide produced by burning fossil fuels was destabilizing the climate system in a way that would ‘significantly endanger plaintiffs, with the damage persisting for millennia.’”[4] According to the plaintiffs, the defendants have failed to take necessary action to curtail fossil fuel emissions, and the government and its agencies “have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation.”[5]
Among other environmental law considerations, the plaintiffs claim this conduct infringes their constitutional rights to life, liberty, and property and is in violation of their substantive due process rights. They also claim that the Defendants have violated the public trust doctrine secured by the Ninth Amendment by denying future generations of the country access to essential natural resources, such as the coastlines.
The plaintiffs seek a variety of remedies. The most significant are:
They seek a declaratory judgment which would “[d]eclare that Defendants have violated and are violating the plaintiffs’ fundamental constitutional rights to life, liberty, and property” by causing or contributing to the dangerous levels of carbon dioxide in the atmosphere thereby “dangerously interfering” with a stable climate system “required by our nation and Plaintiffs alike”;[6]
They ask the court for an injunction preventing the Defendants from further violations of the Constitution;
They ask the court to order the Defendants to prepare a consumption-based inventory of United States carbon dioxide emissions; and
They ask the court to order the Defendants to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide] so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”[7]
Defendants and several intervening energy industry groups filed a motion to dismiss the plaintiffs’ claims for lack of subject matter jurisdiction and failure to state a claim. As the court stated in denying the motions:
This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed. The questions before the Court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.[8]
First, the Court determined that it did have subject matter jurisdiction: “[A]t its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.”[9] As to standing—a doctrine which requires that a plaintiff allege some particular injury in fact, that the defendants caused the injury, and that the relief requested from the court will redress the injury—the court determined that, at the pleading stage, the plaintiffs’ had met all three requirements.[10]
Next, Judge Aiken turned to the motions to dismiss for failure to state a claim, issuing her most noteworthy finding in the environmental law case. Drawing inspiration from the Supreme Court’s recent decision in Obergefell v. Hodges,[11] in which the Court recognized a constitutional right to same-sex marriage, Judge Aiken stated that the plaintiffs had identified a fundamental right: the right to a “climate system capable of sustaining human life.”[12] She articulated the right as follows:
In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase “capable of sustaining human life” should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation. In this opinion, this Court simply holds that 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. 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. Plaintiffs have adequately alleged infringement of a fundamental right.[13]
Judge Aiken next addressed the Defendants’ and Intervenors’ argument that the government had no affirmative obligation to act to prevent climate change. Judge Aiken relied on the “danger creation” exception[14] to the government’s lack of any affirmative obligation to act, [15] although she acknowledged plaintiffs might have difficulty meeting the exception’s rigorous proof requirement in later stages of environmental law litigation.[16]
Finally, Judge Aiken found that the plaintiffs’ federal public trust claims were “cognizable in federal court,”[17] and the plaintiffs’ claims for violation of that doctrine were sourced in the Due Process Clause of the Fifth Amendment.[18] In doing so, the Judge broke with a recent case from the federal district court for the District of Columbia, which held that the public trust doctrine does not apply to the federal government,[19] and sided with two older cases from the Northern District of California and the District of Massachusetts, which held that the public trust doctrine did apply to the federal government.[20]
Judge Aiken concluded by emphasizing that this environmental law case “is of a different order than the typical environmental case,”[21] but that the same legal standards nevertheless applied:
This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs’ allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.[22]
Juliana is scheduled to go to trial sometime in 2017. It will undoubtedly affect environmental law policy around the Gulf Coast and beyond. Unsurprisingly, the case has generated significant media interest. One report posited that Judge Aiken’s environmental law decision “opened a path for an eventual court-mandated, science-based plan to bring about sharp emissions reductions in the United States.[23] Yahoo! News said that Judge Aiken’s ruling has already set ground-breaking legal precedent in the nascent field of climate change law.[24]