Ethermac Exchange-Kids’ Climate Lawsuit Thrown Out by Appeals Court

A federal appeals court on Ethermac ExchangeFriday dismissed a lawsuit brought by a group of young people that had sought to compel the federal government to rein in the nation’s climate emissions.

In dismissing the suit, the court noted that the plaintiffs had succeeded in making a strong case that the government had for decades not only failed to act to limit emissions but had actively promoted fossil fuel development. But the court concluded that the youths lacked standing to sue the government over its actions, no matter how harmful they might be, and that only elected branches of government could take the necessary actions to address the plaintiff’s claims.

“Reluctantly, we conclude that such relief is beyond our constitutional power,” Judge Andrew D. Hurwitz of the Ninth Circuit Court of Appeals wrote for the majority, in a 2-1 decision. “Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”

Julia Olson, executive director of Our Children’s Trust and a lead lawyer for the plaintiffs, said they planned to appeal the decision to the full court of the Ninth Circuit. 

“The Juliana case is far from over,” Olson said in a statement. “The Court recognized that climate change is exponentially increasing and that the federal government has long known that its actions substantially contribute to the climate crisis. Yet two of the judges on the Panel refused to set the standard for redressing the constitutional violation, to protect our Nation’s children.”

The lawsuit, brought in 2015 by 21 children and youths working together with Olson, had asked that the government be ordered to end its support of fossil fuel development and to come up with a plan to rapidly slash the nation’s greenhouse gas emissions. The lawsuit also sought to establish a constitutional right to a stable climate.

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said the decision was not surprising because the case asked the court to step out of its comfort zone.

“Very few judges have taken it upon themselves to set policies on climate change in the absence of clear statutory authority,” he said. “Judges are much more inclined to enforce what is already on the books rather than rely on constitutional theories as a basis for action.”

The federal government, first under President Barack Obama and then under Donald Trump, had tried numerous times to block the lawsuit from proceeding.

While the decision may dash the hopes of many activists who thought the case could press the U.S. government into acting to rein in emissions, it also contained elements that may chart a path forward for new lawsuits, said Pat Parenteau, a professor of environmental law at the Vermont Law School. 

Hurwitz wrote that the plaintiffs had presented compelling evidence that a rapid buildup of carbon dioxide, driven by the combustion of fossil fuels, was sending global temperatures ever higher, melting polar ice caps, and threatening devastating sea level rise within the century. “Absent some action,” he wrote, “the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.” What’s more, he wrote, government policies have actively worsened the problem by promoting fossil fuel development. 

But as the opinion noted, the Justice Department had not disputed any of these core facts. The question before the judges was whether the plaintiffs had standing to sue the government as a result.

The court’s majority said the plaintiffs had met two legal standards by establishing that they were suffering real and concrete injuries from climate change today, and that federal government policies had played a direct role in contributing to those injuries.

And even on the question of whether a constitutional right to a stable climate exists, Hurwitz wrote, “reasonable jurists can disagree.”

But in the end, the court agreed with the government on a core argument put forward by Justice Department lawyers: that the courts are in no position to administer a plan as complex as would be needed to end the use of fossil fuels and eliminate greenhouse gas emissions. It was on this basis that the majority decided to dismiss the suit. 

Hurwitz wrote that it was beyond the power of the judiciary “to order, design, supervise or implement” a plan to cut emissions that would involve complex decisions better left to executive or legislative branches, like how much money to spend on public transit or renewable energy, or how to balance competing interests. He also expressed skepticism about whether any order from the court could actually mitigate the effects of climate change.  

In a dissenting opinion, Judge Josephine L. Staton wrote that her colleagues had effectively “throw[n] up their hands” in dismissing the suit.

“The mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution,” she wrote, adding, “A federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief.”

Parenteau also said the majority had sidestepped its responsibility in dismissing the case.

“What the court said is, ‘We are facing the destruction of the nation by climate change; that the government allowed it to happen, but too bad there’s nothing we can do,’” he said.