Appellate judges questioned whether the courts have the power to order the government to address climate change and if they must recognize a new constitutional right to do it.
The case “is a dagger in the heart of the separation of powers,” argued Jeffrey Clark, DOJ attorney, during an hour-long hearing in a landmark lawsuit by children seeking to force climate reforms. The arguments were before the 9th US Circuit Court of Appeals Tuesday in Portland, Ore.
On the other side, Julia Olson attorney for the 21 youths said, “These defendants are violating [the youths’] Fifth Amendment rights. The government should be ordered to prepare a national energy plan to move the country away from fossil fuels.”
Both sides faced tough grilling from the three-judge panel in the case.
“The question is whether this branch of government (judiciary) has authority to issue the remedy you seek,” Judge Andrew Hurwitz told Olson. “You present compelling evidence that we have a real problem. It may even rise to criminal neglect. The question is whether we have the authority to act.”
The lawsuit, filed in 2015 against the United States by 21 youth plaintiffs, alleges the government has violated their rights by encouraging and allowing activities that significantly harmed their right to life and liberty. It seeks to force the government to adopt methods for reducing greenhouse gas emissions.
Similar suits have failed in the past, but this one gained traction in 2016 when U.S. District Judge Ann Aiken in Oregon upheld the idea that access to a clean environment was a fundamental right and allowed the case to proceed.
The government has appealed asking that the case be dismissed.
Clark argued that the case is an attack on separation of powers that would give the courts unlimited power and that the plaintiffs don’t even have the right to sue, known as standing.
Hurwitz pressed on standing, asking if “rogue raiders were coming across the Canadian border and kidnapping children and the executive branch fails to act” would that create standing?
“No,” Clark said, “the legal remedy, however painful, is to remove the officials from office. It is not for the judiciary to take over.”
Judge Mary Murguia quizzed Olson about how the court could fashion a remedy. “We’re not striking down anything. We would be affirmatively telling the government to do something. I’m trying to tell if we have ever done anything on that scale.”
Olson pointed to the 1954 landmark Supreme Court case, Brown v. Board of Education, in which the high court ordered all the school districts in the country to desegregate.
“When such a fundamental right is violated it is the duty of the courts to issue a systemic injunction,” Olson argued.
She suggested that the court could rely on existing constitutional rights without establishing a new right, but Hurwitz pounced.
“It is surprising, the breadth of your argument. You may be right, but you’re asking us to do a lot of new stuff,” he said.
This case grew out of the Oregon non-profit group, Our Children’s Trust, which has filed cases against states and the federal government seeking to force them to mitigate the effects of climate change.
By 2018, there were more than 1,000 such lawsuits filed in 24 countries, with the vast majority in the US.
The case was argued in Portland, Ore., before Judges Murguia, Hurwitz and visiting California Judge Josephine Staton.
The panel did not rule but will issue a written opinion in coming weeks.
Case: Juliana v. US, No. 18-36082