12AD.10.6 Juliana v. United States, United States Court of Appeals for the Ninth Circuit, Amici Curiae Brief of Members of the United States Congress in Support of Plaintiffs-Appellees

Seven members of Congress submitted this amicus curiae (“friend of the court”) brief in support of the plaintiffs in the Juliana v. United States case. An amicus curiae brief is filed with the court by someone in a position to offer a perspective that is valuable to the legal case and not the same perspective as the actual named parties in the case (i.e., the Juliana plaintiffs and the federal government). This amicus brief is one of many filed in support of the Juliana plaintiffs. Other amicus briefs came from such individuals and organizations as the League of Women Voters, Union of Concerned Scientists, a group of law professors, a group of environmental historians, and two former US Surgeons General. What do these members of Congress argue about how the plaintiffs’ constitutional rights are being violated? What does this brief argue about the responsibility of the courts in this case? What does this brief say about the relative powers of the different branches of government? What does the brief say about whether the other branches of government are unbiased in approaching these issues? Are these members of Congress in a good position to make these arguments about the need for the courts to act?

Also, think carefully about what the plaintiffs want the court to order: that the government create a plan to stop using fossil fuels. How would the government go about creating such a plan, which will affect the entire economy? If the government could not create a plan that worked, the court would have to step in. Does it have the background to create such a plan, or even to judge whether one would work?

This amicus curiae brief from members of Congress makes a point of calling on the courts to weigh in on the issue of climate change in recognition of the “inappropriate politicization” of the issue. Today (and for the past several decades) environmental protection is seen as a political issue for the left, and often resisted by the political right. This amicus curiae brief suggests that the judicial branch is authorized to rule on the issue of federal fossil fuel policy. These legislators call on the courts to step in, in part because the other branches of government have not acted.

An additional amicus brief, submitted by former US Surgeons General, argues that young people are disproportionately affected by climate change. Their physical and mental development is harmed by pollution, they are threatened with malnutrition (as climate change threatens agricultural productivity and the nutritional value of crops), and severe weather and storms threaten their homes and safety while causing missed days of school. Students may discuss whether youth in particular are in a better position than adults to use the court system to insist upon action to combat climate change. Will courts tend to view them more favorably?

The remedy that the plaintiffs seek in this case is extremely broad: ordering the government “to prepare and implement” a plan “to phase out fossil fuel emissions and draw down atmospheric CO2.” There are two questions to consider. First, does a court have the institutional capacity and expertise to oversee the preparation of such a plan? If the government’s plan is insufficient, would the court have the expertise to step in and create its own plan? Second, is this a task better left to the executive and legislative branches? There is no question that a judgment for plaintiffs would arrogate very large power in the court. That’s been done a few times in the past. The implementation of the decision in Brown v. Board of Education, for example, required years of court intervention in segregated school systems — intervention that was very contentious. Is climate change a problem on the same order?

We, members of Congress, believe that youth’s fundamental rights to life, liberty, and property and the access to the essential natural resources they need to survive are being threatened by a man-made climate crisis caused, in large part, by our national fossil fuel energy system. This Court must exercise its duty in assessing the conduct of its co-equal branches and evaluating the constitutionality of the conduct which violates the fundamental rights of these Youth Plaintiffs and future generations. Not only does the Court have the power to interpret the law and provide remedies for systemic violations, the federal judiciary as a whole must fulfill its duty despite the inappropriate politicization of climate change.
... The Constitution guarantees citizens protection against government action that takes away life, liberty, or property without due process. U.S. Const. Amend. V. The Youth Plaintiffs’ fundamental rights to life, liberty, property, and the access to essential natural resources, as guaranteed in the Constitution and public trust doctrine, are currently being threatened by a human-induced climate crisis.

... Given the substantial evidence presented in opposing summary judgment by the Youth Plaintiffs of the present climate crisis, the harmful effects on these Plaintiffs as a result of the climate crisis, and allegations and evidence of the federal government’s role in creating and perpetuating this crisis, the Court has a duty to assess the constitutionality of the conduct challenged. The judiciary cannot defer to the branches whose conduct is challenged as violating the Constitution.

... The far-reaching effects of climate change, with the lives, liberties, and properties of many generations of Americans at stake, calls upon the judiciary to look past the current political divide and exercise its duty to adjudicate the case in an impartial and unbiased manner based on the evidence. The Youth Plaintiffs must be allowed to have their day in an apolitical court to give their testimony about how they have been harmed by climate change caused by the federal government, to present their scientific evidence, and, most importantly, to defend their fundamental rights under the Constitution. The issues of whether resources foundational to human survival and security can be destroyed or irreversibly harmed cannot be deliberated solely by our government’s political branches: Elected officials accept money from the very interest groups that profit off of this destruction. Our government’s courts must also address these issues under exacting analyses of fundamental rights and discrimination against a class of people, our nation’s youngest citizens.

Signed by: Senator Ron Wyden of Oregon; Senator Jeff Merkley of Oregon; Senator Sheldon Whitehouse of Rhode Island; Representative Debra Haaland of New Mexico; Representative Peter DeFazio of Oregon; Representative Earl Blumenauer of Oregon; and Representative Rashida Tlaib of Michigan