(CN) – The Ninth Circuit put the brakes on a landmark climate change suit against the federal government filed by 21 young people, finding that while there is plenty of evidence that the government knowingly caused climate change by subsidizing the fossil fuel industry, courts lack the authority to craft climate policy that ensures a planet capable of sustaining human life.
The young people, led by Kelsey Rose Juliana, sued the government in 2015, claiming it had affirmatively created an imminent climate catastrophe by ignoring the warnings of its own scientists that continuing policies and subsidies promoting the fossil fuels industry would lead to disaster.
Government lawyers under both the Obama and Trump administrations argued the case should be dismissed because the Constitution doesn’t guarantee the right to a livable climate. The Trump administration added the argument that suing the U.S. government was misplacing the blame, because climate change can no longer be solved by the U.S. alone and must be addressed as a global issue.
One argument the Trump Justice Department didn’t make – despite political theater to the contrary – was that climate change doesn’t exist, doesn’t threaten human existence or isn’t caused by human activity. That was a point seized upon Friday by U.S. District Judge Josephine L. Staton in her blistering dissent from the majority opinion.
“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity,” wrote Staton, a Barack Obama appointee sitting by designation from the Central District of California. “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the nation.”
The case was set to go to trial in federal court in Oregon, but the government filed an unusual appeal in advance of a lower court ruling and asked the Ninth Circuit to dismiss the case.
U.S. Attorney Jeffrey Bossert Clark, an avowed climate denier, argued before the Ninth Circuit at a hearing this past June that case was “a direct attack” on the separation of powers. Attorney for the kids Julia Olson argued that the case was like those that had extended legal protections against race and sex discrimination – what she called “the constitutional questions of that era.”
“And when our great-grandchildren look back on the 21st century, they will see that government-sanctioned climate destruction was the constitutional issue of this century,” Olson told the court.
But even assuming the judges are able to recognize such a constitutional right, U.S. Circuit Judge Andrew D. Hurwitz found Friday that the courts can’t give the kids what they seek: an order requiring the government to phase out fossil fuels and draw down atmospheric carbon dioxide, thereby ensuring a livable planet.
Hurwitz “reluctantly” ordered the lower court to dismiss the case.
The Obama appointee wrote the record “conclusively established” that the government has known that its actions would cause climate change, ever since that warning was put to the Johnson administration in 1965. He cited evidence showing that the Environmental Protection Agency warned in 1983 that the atmosphere was likely to rise by 2 degrees Celsius by 2040 and called the government’s “wait and see” approach “extremely risky.” And he pointed to a 1990s report in which the EPA “implored the government to act before it was too late.” And yet, Hurwitz noted, fossil fuel emissions continue to climb exponentially.
Meanwhile, the U.S. keeps making the situation worse, Hurwitz wrote, with tax benefits and subsidies to oil companies, permits for imports and exports and leases for fuel extraction on federal land. He noted that the U.S. is currently extracting oil and gas at a rate four times faster than any other nation.
Hurwitz compared the situation to a song from the 1960s that warned humanity that it was “on the eve of destruction.”
“The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer,” Hurwitz wrote in the 32-page opinion. “A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”
But Hurwitz said the courts can’t write climate policy; that task falls to the U.S. Senate, the House of Representatives and the president.
“That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
In an email, Clark praised the panel’s ruling.
“The United States is pleased with the outcome,” the attorney with the Justice Department’s environmental and natural resources division said. “As the court recognized, Article III of the Constitution’s standing requirement is a vital limitation on the power of the federal courts and this suit fell squarely outside the parameters of Article III.”
Hurwitz was joined by U.S. Circuit Judge Mary H. Murgia, a fellow Obama appointee. But Judge Staton waved off the majority’s conclusion, saying she would have let the kids go to trial in Oregon.
“Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the nation’s willful destruction,” Staton wrote.
Philip Gregory, co-counsel for the kids, said in a phone interview that Staton’s dissent opened the door for the kids to request an en banc rehearing at the Ninth Circuit.
“Our youth plaintiffs are extremely hopeful that a full Ninth Circuit panel will determine that it is not the law of the United States that our federal government can harm its young citizens and get away with it,” Gregory said.
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