A Critique of the Ninth Circuit Decision in the Juliana Climate Change Lawsuit

This essay was originally published online by the Presidential Climate Action Project on February 4, 2020: https://pcap2020.org/bungling-the-trial-of-the-century/

A Critique of the Ninth Circuit Decision
in the Juliana Climate Change Lawsuit

by Thomas Coffin

Editor’s note: Last month, a three-judge panel in the U.S. Ninth Circuit Court of Appeals ruled 2-1 to dismiss Juliana v. US, the lawsuit filed five years ago by 21 young people who alleged that the federal government’s direct involvement in fossil fuel production violated their rights to a future that was not compromised by climate change. The plaintiffs hoped for the opportunity to try the current Administration in open court. The following commentary on the decision was written by a retired U.S. Magistrate Judge.

The 9th Circuit recently dismissed the Juliana v United States historic climate change lawsuit, relying heavily upon the Supreme Court case of Rucho v Common Cause. The Juliana decisions threatens to have an ominous impact on the most basic right the people of this Nation have—the right to life itself—and is plagued by contradictions within its reasoning.

Rucho declared that gerrymandering (the manipulation of Congressional districts by the political party drawing the district lines to gain an unfair electoral advantage) was a form of vote-rigging that was simply not justiciable (or redressable) by the federal courts.

Despite acknowledging that gerrymandering can indeed violate the Constitution, the Court essentially found that the practice was too complex for the judiciary to redress in that the Constitution did not provide sufficient guidelines for the task, a conclusion that was belied by the fact that lower courts had already demonstrated the ability to perform their constitutional function.

It is, to put it mildly, troubling that the Judicial branch, which exists in large part to protect constitutional rights such as equality among voters, would refrain from its duty because of complexity and instead defer the solution to the very branch of government that is violating the rights at issue. But such is the effect of Rucho.

In Juliana, the majority hung its hat on the Rucho pole and found that the constitutional violations presented in the climate change lawsuit presented issues beyond the reach of Article III courts. The court did so despite finding that:

A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse. The problem is approaching “the point of no return”. Absent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies. The record also conclusively establishes that the federal government has long understood the risk of fossil fuel use and increasing carbon dioxide emissions.

The plaintiffs have made a compelling case that action is needed, it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions...(T)he plaintiffs’ case must be made to the political branches or the electorate at large.

The ironies and contradictions in the court’s ruling are striking. The “compelling case” for action the plaintiffs have made would not have been possible but for this very lawsuit the court is now saying should never have been before the judiciary in the first place. The government refused initially to even file an answer to the allegations in the complaint, contending instead that the case should have been immediately dismissed without further ado. It was only after the government’s motion to dismiss was denied by the district court that the government filed its required answer to the complaint in which it, for the first time, shockingly agreed with virtually all of the plaintiffs' allegations regarding climate change.

Pretrial discovery flushed out the details of the government’s decades-long knowledge of the inevitable catastrophic results of climate change, its link to fossil fuel emissions, its continued promotion of fossil fuel use despite that knowledge, and its concealment of the truth from the public at large. To be blunt about it, the record developed by the plaintiffs in this case reveals exactly why it belonged in federal court in the first place. Until climate change found a venue in which false narratives were sanctionable, witnesses were under oath and subject to cross-examination, and relevant documents were subject to the subpoena power of the court, the climate change hoax cover-up continued unabated in the political arenas that the court shoos the plaintiffs back to.

That brings us to Citizens United, another Supreme Court case of recent vintage that is inimical to our democracy. The political branches relied upon exclusively by the court to fix the problem, now that they will supposedly recognize that they have a moral duty to do so, is infected by overwhelming corporate influence given the Court’s opening of the floodgates to unlimited corporate campaign funding in Citizens United.

We have a president who continues to deny the existence of climate change because it snows somewhere every winter and who is known to retaliate against government scientists who contradict him. Congress, as noted, is expected to please its corporate donors. Frankly, the Judiciary is the only branch that is strictly off-limits to “emoluments” of any sort. This is the forum that enjoys the very independence that is necessary to tackle the existential problem at hand and fashion solutions without improper interference from outside interests. It is simply an abdication of the co-equal and independent status of the Judiciary to shut the courthouse doors to the victims of climate change and send them packing across the street to the very institutions causing the injuries as the sole solution to this crisis.

The Judiciary has tackled complex societal problems before that the other branches were reticent to address. Brown v Board of Education ended the systemic cancer of segregation that permeated our country for almost 100 years after the Civil War. Would today’s Court find that problem too complex for the Judiciary or not redressable? I fear that one could just as easily find racism to be “not justiciable”.

I submit that climate change, as daunting as the solution is, implicates the role of the Judiciary as part of the process for protecting the rights of “We the People” for whom the Constitution was established. It is simply defeatist to imagine that any remedy a court may fashion would impermissibly invade the province of the other branches without even giving the court the chance to fulfill its role. There is a wealth of competence in the judicial branch, tiers of appellate review, and any errors or oversteps are easily correctable.

As I previously stated, and this cannot be overstated, this lawsuit, after being allowed to proceed this far in the court system, has already accomplished the significant objective of exposing the truth about climate change and its ongoing and escalating threat against the very lives the Constitution was formed to protect.

The dissent in Juliana succinctly captures what is at stake:

Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020. He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children. The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.