EUGENE, Oregon, January 21, 2020 (ENS) – A divided three-judge panel of the Ninth Circuit Court of Appeals has “reluctantly” concluded that the youth plaintiffs’ case in Juliana v. United States must be made to Congress, the President, or to the electorate at large. The decision finds federal courts cannot provide the youth with a remedy for their climate change injuries.

In her dissenting opinion, District Judge Josephine Staton wrote that the 21 young plaintiffs brought the lawsuit to enforce the most basic structural principle embedded in our system of liberty – the Constitution does not condone the nation’s willful destruction.

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Plaintiffs in Juliana v United States rally on the steps of the Federal Courthouse in Eugene, Oregon, Oct. 29, 2018. (Photo by Robin Loznak courtesy Our Children’s Trust)

Judge Staton would hold that the youth plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial.

Counsel for the youth plaintiffs has pledged to ask the full Ninth Circuit Court of Appeals to review the Ninth Circuit Panel’s January 17 determination that federal courts can do nothing to address an admitted constitutional violation.

Julia Olson, executive director and chief legal counsel of Our Children’s Trust and co-counsel for the youth plaintiffs, commented, “The Juliana case is far from over. The youth plaintiffs will be asking the full court of the Ninth Circuit to review this decision and its catastrophic implications for our constitutional democracy.”

Our Children’s Trust is a nonprofit public interest law firm based in Eugene that provides strategic legal services to youth from diverse backgrounds to secure their legal rights to a safe climate. The firm works to protect the Earth’s climate system for present and future generations by representing young people in global legal efforts to secure their binding and enforceable legal rights to a healthy atmosphere and stable climate, based on the best available science.

“The Court recognized that climate change is exponentially increasing and that the federal government has long known that its actions substantially contribute to the climate crisis,” Olson said. “Yet two of the judges on the panel refused to set the standard for redressing the constitutional violation, to protect our nation’s children.

“The standard is a question of science that should be determined at trial,” said Olson. “The majority opinion ignores the fact that we have yet to go to trial on the issue of redressability.”

There were numerous points in which the majority opinion of Ninth Circuit Judge Andrew Hurwitz found in favor of the young plaintiffs:
* – the evidence showed climate change is occurring at an increasingly rapid pace;
* – copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked;
* – the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions;
* – the record established that the government’s contribution to climate change was not simply a result of inaction.

The opinion also recognized that the youth plaintiffs had suffered concrete and particularized injuries from climate change.

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Kelsey Juliana, 23, of Eugene, Oregon is the oldest of the youth plaintiffs suing the U.S. Government for a sustainable climate policy. (Photo courtesy Our Children’s Trust)

Kelsey Juliana, the 23-year-old named plaintiff in Juliana and resident of Eugene, Oregon, said, “This isn’t over. Prepare for a petition for review en banc to the Ninth Circuit as we refuse to do anything but move forward and ultimately win. Courts do have an obligation to address issues of constitutional, existential crisis, like climate change.”

Article III of the U.S. Constitution requires a plaintiff to establish “standing” in order to sue in federal court. The Ninth Circuit Panel held the district court properly found the youth plaintiffs met the Article III causation requirement because there was at least a genuine factual dispute as to whether a host of federal policies were a “substantial factor” in causing the plaintiffs’ injuries.

Yet, two of the three judges held the young plaintiffs’ claimed injuries were not redressable by an Article III court.

The two judges held it was beyond the power of federal courts to order, design, supervise, or implement the youth plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the executive and legislative branches.

In short, the majority ruled the remedies the youth plaintiffs have requested must be implemented not by the courts, but by Congress or the President.

Philip Gregory, with Gregory Law Group of Redwood City, California and co-counsel for the youth plaintiffs, stated, “Despite finding the government was actively contributing to climate change, and despite the fact the court found these youth plaintiffs submitted evidence of concrete and particularized injuries, and despite the fact that the youth plaintiffs presented sufficient evidence to show federal policies were a substantial factor in causing plaintiffs’ constitutional injuries, a majority of the panel concluded there was nothing federal courts could do to address these constitutional violations. We strongly disagree with this conclusion and will take this determination to the full Ninth Circuit.”

Juliana v. United States is not about the government’s failure to act on climate. Instead, these young plaintiffs between the ages of 12 and 23, assert that the U.S. government, through its affirmative actions in creating a national energy system that causes climate change, is depriving them of their constitutional rights to life, liberty, and property, and has failed to protect essential public trust resources.

Juliana v. United States is one of many related legal actions brought by youth in several states and countries, all supported by Our Children’s Trust, and all seeking science-based action by governments to stabilize the climate system.

Canadian youth

15 young Canadians are suing the Government of Canada for protection from climate change caused by governmental policies. Oct. 25, 2019, Vancouver, BC, Canada (Photo courtesy Our Children’s Trust)

On October 25, 2019, for instance, 15 young Canadians from across the country filed a lawsuit against the federal government of Canada for contributing to dangerous climate change.

In their case, La Rose v. Her Majesty the Queen, the young people argue that they are already being harmed by climate change and the federal government is violating their rights to life, liberty, and security of  person under Section 7 of the Canadian Charter of Rights and Freedoms and for failing to protect essential public trust resources.

The youth also allege that their government’s conduct violates their right to equality under Section 15 of the Charter since youth are disproportionately affected by the effects of climate change.

Plaintiff Allie Ho, a 17-year-old organizer with Vancouver’s Sustainabiliteens, said, “In the last year, the youth climate justice movement has grown exponentially. Hundreds of thousands of us have taken to the streets, making our voices unignorable. By bringing our demands to the federal courts, this lawsuit creates another path to ensure that the government prioritizes climate justice.”

Successes include Norway’s adoption of a public trust-based constitutional climate amendment; Uganda’s big court win in the Netherlands mandating specific national emission reductions; and the Supreme Court of Pakistan allowing young Rabab Ali’s constitutional climate case to proceed on behalf of the public and future generations.

Levi Draheim, the 12-year-old Juliana plaintiff from Florida, commented, “We will continue this case because only the courts can help us. We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so.”

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