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12AD.10.4 Juliana v. United States, Appellants’ Opening Brief, United States Court of Appeals for the Ninth Circuit

United States District Court for the District of Oregon

Juliana v. United States, Appellants’ Opening Brief, United States Court of Appeals for the Ninth Circuit, 1 February 2019.

The excerpt above represents the argument of the federal government (the defendant) against the Juliana lawsuit. The federal government does not dispute that climate change is happening, that it is likely to get worse, or that human activity has contributed to the warming climate. Instead, the federal government argues that these plaintiffs cannot show a “particularized” injury to themselves, that a judge doesn’t have the power to order the relief that plaintiffs seek, that no constitutional rights of the plaintiffs have been injured, and that the atmosphere cannot be seen as a resource subject to a “public trust.”

Why does the defendant (the federal government) not consider itself able to be sued for the harm caused by climate change? “Redressable” means that the court is capable of ordering a solution that fixes the problem identified by the plaintiffs. Why does the defendant argue that the Juliana case (which was filed in a federal district court in Oregon) cannot bring about a solution to the problem identified by the Juliana plaintiffs? Which branches of government are the appropriate ones to tackle climate change, according to the defendant? According to the defendant, do citizens have a legally protected right to a “livable climate”? According to the defendant, who, if anyone, is responsible for protecting the climate system? Knowing that many of the youth involved in this case are not yet old enough to vote, how might the age of these youth cause them to think differently than the defendant about which branch of government to turn to?

The defendant (the federal government) does not believe any one entity can be held liable for causing climate change because the “cause” of climate change is so widespread. Nor does the defendant believe that the plaintiffs can get the relief they seek because the district court cannot exercise authority over what the government terms “national energy production, energy consumption, and transportation.” The defendant argues that Congress and the White House are the appropriate branches for addressing climate change. You will need to explain to the students that the public trust doctrine is the principle that certain natural resources are preserved for public use, and that the government must protect and maintain these resources for the people and not allow them to be owned or exploited through private property. While the defendant argues that the climate system has never before been considered part of the public trust, there are a few cases in which state courts have ruled that the air is a public trust resource.

Plaintiffs have only a generalized grievance and not the required particularized injury because global climate change affects everyone in the world. They cannot demonstrate causation because climate change stems from a complex, world-spanning web of actions across all fields of human endeavor, and Plaintiffs cannot plausibly connect their narrow asserted injuries — like flooding or drought in their neighborhoods — to any particular conduct by the government. In addition, Plaintiffs’ alleged injuries are not redressable because a single district judge may not ... seize control of national energy production, energy consumption, and transportation in the ways that would be required to implement Plaintiffs’ demanded remedies. ...
Plaintiffs’ alleged fundamental right to a “livable climate” finds no basis in this Nation’s history or tradition and is not even close to any other fundamental right recognized by the Supreme Court. ...

... The actions that Plaintiffs’ seek to compel are appropriately considered by the legislature and the executive, not by the courts. ...

The Constitution does not impose an affirmative duty to protect individuals. ... As a general matter, the Due Process Clause “is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”

... the climate system or atmosphere is unlike any resource previously deemed subject to a public trust. It cannot be owned and, due to its ephemeral nature, cannot remain within the jurisdiction of any single government.