Campbell Law Observer writer examines link between climate change and the Constitution

Photo of student protestors holding sign saying there is no planet B on a white background with drawing of blue globe

Climate change is an issue that has recently come to the forefront of discussion in both the United States and the rest of the world.  Commonly, climate change is debated through the lens of politics, social policy, or economic principles.  The legal field has not yet delved as deeply into the issue.  Until recently, many have hoped to combat climate change through legislation and lifestyle changes.   However, individuals, activists, and other groups around the country have now turned to the courts to compel governmental action on climate change.

In 2015, a youth environmental activist group, Our Children’s Trust (“Plaintiffs”), sued the United States government (“Defendant”) in federal court in the District of Oregon. In Juliana v. United States(one of the most closely watched climate change cases), the Plaintiffs are a group of children and teenagers who—at the time the complaint was filed—were between the ages of eight and nineteen. These children were joined by Earth Guardians, another youth environmental activist group, and Dr. James Hansen, who acts as a guardian for future generations.

In their complaint, Plaintiffs allege that the United States government has been well-aware of the dangers associated with the burning of fossil fuels and its effects on the environment; yet they have “permitted, encouraged, and otherwise enabled” the drastic increase in the atmospheric concentration of carbon dioxide.  Furthermore, Plaintiffs explain that the unprecedented levels of carbon dioxide in the atmosphere are not only currently injuring the Plaintiffs but will continue to injury future generations.

Plaintiffs set forth a multitude of theories in which they seek remedy from the courts.  Notably, Plaintiffs assert a public trust claim and a state-created danger claim relating to the injuries incurred from the effects associated with climate change. Yet, in a unique argument, they also claim that the government’s failure to act on climate change violates their rights to life, liberty, and property without due process of law.   Furthermore, Plaintiffs assert that there is a fundamental, unenumerated right to a sustainable climate found under the Due Process Clause of the Fifth Amendment. Thus, by failing to enact any meaningful legislation to combat the present and future impacts of climate change, Plaintiffs allege that the government has infringed upon their constitutional rights.  Before trial, Defendant and several intervenors filed a motion to dismiss the case.

In an unprecedented ruling, the district court agreed with Plaintiffs and denied all motions to dismiss.  In her opinion, Judge Ann Aiken stated, “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”  Juliana, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016).  Judge Aiken compared the foundational value of this right to the right to same-sex marriage outlined in Obergefell v. Hodges, the Judge noting that—as marriage is the foundation of family—a stable climate is “quite literally the foundation ‘of society, without which there would be neither civilization nor progress.’” Aiken monumentally held that a stable climate is the baseline for society, and without such, other rights would be infringed.  The ruling was promptly appealed.

In its past case law, the Supreme Court of the United States has found fundamental, unenumerated rights exist under the Due Process Clause of the Fifth Amendment of the Constitution.  As outlined in McDonald v. City of Chicago, to determine whether an unenumerated right is fundamental, courts decide whether the purported right is either fundamental to our scheme of ordered liberty, or whether it is deeply rooted in the history and tradition of the United States.  Courts must use “utmost care” when determining whether a right is protected by the Due Process Clause, as stated in Washington v. Glucksberg.

The case of Juliana already has a long procedural history. In about four years of litigation, there have been several interlocutory delays, including a ruling from the Supreme Court.  Substantively, Judge Aiken issued her decision in 2016, and defense counsel subsequently appealed.  The parties gave oral arguments before the Ninth Circuit Court of Appeals in June 2019. As of mid-October 2019, the Ninth Circuit has not yet issued their opinion.  This article will not detail the procedural history of the case, but rather focus on the constitutional issues—as argued by the parties— of whether Plaintiffs have standing to initiate this action, as well as both parties’ arguments regarding an unenumerated right to a sustainable environment.

To read full story, follow this link to the Campbell Law Observer.