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January 20, 2020
Children in climate case lack standing, says 9th Circuit

In a petition that captured the public’s attention when it was filed 5 years ago, 21 plaintiffs, aged 7 to 19, asked a U.S. District Court to order the federal government to “phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system.” In its defense, the government argued that the plaintiffs lacked standing to sue and asked the district court judge to dismiss the case. In her order, District Judge Ann Aiken refused to do so. The government repeated its defense before the U.S. Court of Appeals for the 9th Circuit. In a 2-to-1 opinion, the 9th Circuit panel “reluctantly” agreed with the government and remanded the case to the District Court with instructions to dismiss for lack of Article III standing.

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Alleged harm

In their case, plaintiffs contended that climate change and fossil fuel combustion are causing them significant psychological harm, impairment to recreational interests, exacerbated medical conditions, and damage to property. These harms, they continued, were and are infringing on their constitutional right to life, liberty, and property. The plaintiffs also argued that the government’s refusal to eliminate fossil fuels discriminates against young citizens, who will disproportionately experience the destabilized climate system in the United States.

The 9th Circuit majority agreed with much of the plaintiffs’ argument. For example, the majority said the record presented in the case “left little basis for denying that climate change was occurring at an increasingly rapid pace; copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction.”

Also, the majority found that the plaintiffs’ petition satisfied the first two of the three requirements for establishing standing. First, the majority agreed with the district court’s finding that plaintiffs claimed concrete and particularized injuries. Second, the majority also agreed that a host of federal policies were a “substantial factor” in causing the plaintiffs’ injuries.

Limited judicial power

But the majority did not agree with the district court’s finding on the third requirement—that the court has the authority to redress the injuries suffered by the plaintiffs by instructing the federal government to undertake the requested remedial plan.

“Specifically, the panel held that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches,” wrote the majority. (Article III of the Constitution establishes, defines, and limits the powers of the Judicial Branch.)

“The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large,” concluded the majority.

Responsibility abandoned, says dissent

A passionate dissent to the majority’s opinion was written by Judge Josephine L. Staton, who emphatically disagreed that the federal courts have no role to play when “the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

Judge Staton elaborates:

“My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.”

Staton concludes:

“Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
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