A Right To Protection Against Climate Change

Environmental organizations everywhere fawning over the supposedly brave group of young people crusading against the environmentally destructive executive branch, as it apparently ignores the certain death of all young adults and children in the future. Led by the activist group, Our Children’s Trust, the accumulation of young people has been in a legal battle for several years over a lawsuit filed claiming that they have a right to government action that protects them from climate change. U.S. District Judge, Ann Aken, echoes the claims of the plaintiffs on the organization’s website, “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society”. Turning the world of Constitutional arguments on its head, rather than reasoning a certain government action is prohibited under the document, the argument claims that the Constitution compels an ambiguous amount of action to protect the climate. The lawsuit is specifically aimed at the executive branch, which has tried to shoot down the case as early as possible. Regardless, Juliana v. United States heard oral arguments on Tuesday, June 4, in front of the U.S. Court of Appeals, Ninth Circuit.

Beginning in 2016 under the Obama Administration, the plaintiffs state two main objectives of the lawsuit. The first is a declaration of their constitutional rights that have been violated, and the second is to establish a court order enjoining defendants from violating those rights and directing defendants to develop a plan to reduce carbon emissions. The stated question of the case is whether the defendants, the Trump Administration, are responsible for some of the harm caused by climate change, whether the plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without violating the separation of powers doctrine. Before examining the arguments of the case, it is important to understand that it proceeds on the understanding and assumption that man-made climate change exists, so this front is not for debate here. The first of the three most important laws discussed between both parties is the Administrative Procedure Act (APA), which rules how administrative agencies may establish regulations, and leaves a specific legal procedure to challenge agencies for inaction. The second is Article III of the Constitution, which lays out the structure of the judicial branch, and may prevent this decision from being matters for the courts. Third, and most important for this case is the Fifth Amendment to the Constitution, where the plaintiffs reason that it protects their rights to life, liberty, and property.

The group of young adults and kids, as the plaintiffs, argue that this is a constitutional case of great urgency about the physical and emotional security of America’s youth. Their strongest and most important arguments are those regarding the Constitution, which also present their case as an argument from liberty. The first important point is their case that Article III protects citizens’ rights to take action in court if they are “injured by the actions of political branches”. Therefore, they view executive inaction as an equivalent violation of rights and abuse from government. Based on this, the plaintiffs reason that Article III covers their situation and gives them the opportunity to make this a matter for the Judicial Branch. After establishing that they can indeed take this matter to court, the plaintiffs can proceed to how they are abused by inaction of the state and how it falls under the Fifth Amendment. They allege that inaction violates their Constitutional rights to life and equal protection from government. Moving the debate to one over the interpretation of the founding document, the plaintiffs reason that denying children their lives and safety will upend Framers’ intent in the founding documents and the Bill of Rights.

The Trump administration, acting as the defendants, reject every claim by the plaintiffs and remind that they are using the ambiguous “protection of future generations” to ask a single district court to compel the executive branch to enforce a number of extreme policy proposals without Congressional approval. This creates a very strong narrative for the defense. To lead with their argument, the Trump Administration states that the plaintiffs lack standing under Article III, on the grounds that it protects citizens from government action, but not inaction, and is therefore not justiciable for federal courts, simply countering the plaintiff interpretation. Even if it was justiciable under federal courts, the defense alleges that the Administrative Procedure Act (ACA) leaves specific requirements to follow in order to challenge an executive agency for inaction, which the plaintiffs failed to follow. The argument then proceeds to state that if the two previous arguments were assumed away, their Fifth Amendment claims would still fail. The Trump Administration rejects the claim that the Fifth Amendment guarantees a right to “a stable climate system” and that agency inaction does not infringe on constitutional rights. They reject this claim because of the overall case theme, of twisting former constitutional mandates on action to inaction and presenting the founding document as a mandate for specific outgrowths of the federal government, which is the opposite of the general interpretation of framer intent.

The Ninth Circuit Court of Appeals held oral arguments on June 6, where media outlets described a “grilling of both sides”. Much of the significant questioning came from Judge Andrew Hurwitz of the three-judge panel, who may have exposed the worst arguments of each side. When the defense was presented by the Trump Administration, represented by Jeff Clark, he presented a narrative that a single district court should not be making such a sweeping decision across the nation, as to the challenge the plaintiff interpretation of Article III. Judge Hurwitz questioned the narrative, pointing this out as an invalid claim since a decision by the Ninth Circuit on this case would inevitably lead to higher court rulings.

Proceeding to hear arguments from the plaintiffs, Judge Hurwitz unpacked a possible inconsistency in their case regarding the Fifth Amendment. Juliana et al are using the Constitutional claim as if action by the executive branch is causing climate change, which then harms children that have a right to life. However, Hurwitz points out that the event of government causing harm here is not the case, but rather neglecting to address a vague claim. He uses the hypothetical of irrationally placed roadwork cones that cause accidents as a legitimate instance where this argument would apply. This echoes the rejection of this interpretation given by the defendants. The creation of danger is not equal to a preexisting danger that is not prevented. This could be devastating given that this argument is central to the plaintiffs.

When the defendant Trump Administration speaks on the extreme implications of Juliana v. United States, the main point is that the case would have no chance of winning at the Supreme Court, is therefore based on making a political statement. This is more of an undeniable fact, that this is a case of neither liberty nor property, but of the left wing versus the right wing. The progressive plaintiffs will continue to engineer their arguments to make the executive branch appear tyrannical, even when the supposed denial of “right to life” relies on massive government spending, executive agencies, and taxation which expend the property rights of others. The twisting of the Constitution sounds like a shaky interpretation, where the document is perceived as a mandate for a powerful, confiscatory government, rather than a document of severe limitation of those exact qualities.

Unfortunately for the Republican executive branch, the plaintiffs have already been successful in portraying the evil climate deniers in this lawsuit, which is why they must prevent the case form continuing to the Supreme Court. The plaintiffs also brought up the subsidies and tax credits as part of special economic privileges given to the fossil fuel industry. Whether this makes their case successful, the Executive Branch will not want this inconvenient cronyist fact to become central to the case. Regardless, there is no way for the debate to continue without the Trump Administration as the antagonist.

Juliana v. United States will not likely end with any change of policy, but it will get its media attention and climate change drama. If it passes the heavily left-leaning Ninth District, there is no chance it will pass the Supreme Court. This will be a landmark in the furious debate for environmental policy leading up to elections and pursuing policy through the courts is simply a different method.