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Young Climate Litigants Push High Court Fight Some Call Reckless

Feb. 11, 2021, 10:30 AM

The young plaintiffs behind an ambitious climate lawsuit are taking their case to the U.S. Supreme Court, despite warnings from environmental lawyers that the attempt could backfire.

Lawyers for the 21 children and young adults in Juliana v. United States quickly announced plans Wednesday to file a Supreme Court petition after the U.S. Court of Appeals for the Ninth Circuit refused to revive their claims that the federal government has violated their constitutional right to a stable climate system.

Julia Olson, who represents the plaintiffs, said she and her clients were unmoved by detractors who worry a Supreme Court fight would undermine broader environmental litigation.

“Some people have a gut, fear-based response,” said Olson, who is executive director and chief legal counsel at the advocacy group Our Children’s Trust. She told Bloomberg Law she’s confident the justices will be receptive to the narrow legal question the plaintiffs plan to pose.

The plaintiffs have also sent letters to the Justice Department asking the Biden administration to come to the table to negotiate a potential settlement focused on reducing greenhouse gas emissions.

Biden hasn’t commented on the kids’ climate case, but on the campaign trail pledged to “strategically support” plaintiffs in other types of climate litigation.

‘Strategic Mistake’

Outside lawyers, many of whom are sympathetic to the plaintiffs’ novel claims, say taking the issue to the high court could spell disaster for environmental interests if the justices agree to review the case.

The Ninth Circuit’s rehearing denial is “no doubt enormously disappointing” to the plaintiffs after their more than five-year effort to make the government take action “urgently needed to avoid the truly catastrophic consequences of climate change that the entire planet now faces,” Harvard Law professor Richard Lazarus said.

“For making clear the depth of the government’s past decades-long lapses in the face of industry malfeasance, the plaintiffs and their lawyers deserve the nation’s thanks,” he said. But Lazarus cautioned that seeking Supreme Court review would be “a serious strategic mistake” for those who care about climate issues.

“The result would far more likely be the establishment of binding legal precedent by the Supreme Court that sets back critically important efforts to address the climate issue rather than a Supreme Court ruling that promotes those efforts,” he said.

Some worry the 6-3 conservative court could use a case like Juliana to set new constraints on environmental standing. Justices could also seize the opportunity to question whether certain climate questions belong in court at all, Case Western Reserve University law professor Jonathan H. Adler said, calling a Supreme Court bid in Juliana “particularly reckless.”

Vermont Law School professor Pat Parenteau said the risk is simple: “This is the most conservative Supreme Court we’ve seen in the modern age of environmental law. There is no chance of a favorable decision from this court.”

‘Narrow Question’

But to Olson and her clients, continuing the fight at the Supreme Court is the necessary next step.

The Ninth Circuit issued a 2-1 ruling last year finding some merit to the plaintiffs’ claims but concluding that the judicial branch lacked authority to redress the alleged harms, meaning the young litigants lacked legal standing. Wednesday’s order rejected their plea for rehearing.

The Juliana plaintiffs’ lawsuit sought both injunctive relief—a court order requiring a plan to draw down U.S. reliance on fossil fuels—and declaratory relief—a formal acknowledgment that children have a constitutional right to a safe climate system. When the Ninth Circuit tossed the case by concluding the alleged harms weren’t redressable, it ignored the fact a court could have at least provided declaratory relief, Olson said.

That’s the “narrow question” the plaintiffs plan to take to the Supreme Court: whether they have legal standing under Article III of the Constitution to pursue declaratory relief for a constitutional injury, she said.

“I see a court with a variety of judicial perspectives that leans more toward originalism than conservatism, and I maintain that the case we have brought is in our favor if you look at it through an originalist lens or a conservative lens,” she said.

‘Only Route’

The plaintiffs deserve an opportunity to make their case for a constitutional right to a stable climate system, said Widener University law professor James R. May, who has led amicus briefs supporting the Juliana plaintiffs.

“The only route, and the route that the founders envisioned for vindicating fundamental rights, is to go to court,” he said. “The plaintiffs’ claims deserve their day in court. I’m not saying they win; I am saying they deserve a hearing.”

The kids’ climate case was moving toward trial in a federal district court in Oregon in 2018, but the Justice Department’s emergency detours to the Supreme Court and Ninth Circuit ultimately kept any proceedings from moving ahead.

While there’s a real risk of legal defeat at the Supreme Court, some “sympathetic voices of detraction” are raising unfounded concerns, May argued. Legal standing issues in particular arise at the Supreme Court often, so there’s no reason for environmental lawyers to criticize a Juliana petition simply for “oblique concerns” of adverse precedent in that area, he said.

“First of all, they’re not human rights lawyers; Julia is,” May said. “Second of all, if the standard for deciding whether to bring a case is whether it poses risks, nobody would ever bring a case.”

Detractors

The most significant climate case to ever reach the Supreme Court, Massachusetts v. EPA, had legions of doubters as it worked its way through the court system.

The case pushed the justices to address whether planet-warming carbon dioxide qualified as a pollutant under the Clean Air Act. Skeptics worried the Supreme Court would say no, thereby tying the government’s hands on regulating emissions. The opposite happened, and the 2007 opinion is now considered a landmark precedent supporting climate action.

But many legal scholars aren’t convinced the Juliana case would take the same path. Only one of the justices from that majority opinion remains on the court, and the membership has moved heavily rightward with former President Donald Trump’s three appointments to the bench.

Adler, of Case Western, called the two cases “apples and oranges,” saying the Juliana plaintiffs haven’t “figured out how to bring their claims in bound.”

And the statutory interpretation issues at play in Massachusetts v. EPA are very different from the constitutional issues in the kids’ climate case, UCLA law professor Sean Hecht said.

“I don’t think anyone would disagree that they’re asking a court to do a different kind of thing here,” he said of Juliana. “It makes the dynamic very, very different.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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