By Andrea Sinele*
In Juliana v. United States, a group of twenty-one children ages nine to twenty-one, along with Dr. James Hansen, sued the fossil fuel industry and Executive Branch, specifically the President, the Department of Transportation, and the Environmental Protection Agency. Plaintiffs allege that the offices have violated their fundamental right to a stable climate by allowing practices which have contributed to dangerous levels of carbon dioxide in the atmosphere. They argue that the government has impinged their right to life, liberty, and property through its aggregated actions in permitting fossil fuel development and subsidizing the fossil fuel industry.
In November of 2016, Judge Aiken of the United States District Court for the District of Oregon denied the government’s motion to dismiss, acknowledging a fundamental right to a stable climate. This ruling opens a channel through which the court could mandate the federal government to reduce carbon emissions.
Prior to 2015, court cases attempting to compel government action on climate change have not received much traction. In 2011, Our Children’s Trust aided in filing Alec L. v. McCarthy. They alleged that six government agencies violated the public trust doctrine, a law prohibiting appropriation of public resources for private use. This claim is similar to the Juliana claim in that they both allege that the federal government violated the plaintiffs’ right to the preservation of public resources. The Court held that the dispute did not fall under federal court jurisdiction because the public trust doctrine is primarily governed by state law. The Clean Air Act provides for state actions which displace a federal common law right to seek redress for carbon dioxide emissions.
In its denial, the Court identified the constitutional difficulties inherent in these suits. First, plaintiffs seek court-mandated regulatory activity. This means that the court will need to determine the appropriate level of carbon dioxide in the atmosphere and develop a plan to attain that goal. The Court argues that these functions are better served by federal agencies, which were created to serve as “the primary regulators of greenhouse emissions.”
Since then, however, there have been cases, international and domestic, that have accepted climate liability in the human rights context. For example, in the Netherlands, a Dutch court ordered the government to reduce carbon emissions by 25% within five years to protect the rights of its citizens.
Additionally, in 2015, the Supreme Court upheld a fundamental right to same-sex marriage in Obergefell v. Hodges, precluding the legislature from pursuing policy in violation of this fundamental right. Judge Aiken directly analogized Juliana to Obergefell in her decision to deny the government and fossil fuel industry’s motion to dismiss, saying “just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society.”
While the plaintiffs in Juliana seek to make a public trust doctrine argument, this case is different from Alec L. because it also alleges a constitutional violation of the childrens’ rights to life, liberty, and property as guaranteed by the Fifth Amendment’s Due Process Clause. This dispute falls under federal jurisdiction because it is a constitutional issue. Thus, this case solved the jurisdictional problem of Alec L public trust doctrine claim by tacking on an additional federal constitutional claim.
Judge Aiken differentiated this case by noting that “it alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ constitutional rights to life and liberty.” Additionally, she ruled that this case is fit for the courts rather than Congress, because there are no other remedial options for individuals who are harmed by the government knowingly enabling pollution.
Though this case survived a motion to dismiss, an uphill battle remains. The separation of powers issues set forth by the court in Alec L. are perhaps more salient in a Donald Trump administration because the President has made clear that he will not advance environmental protection policies. However, some argue that Trump’s policies hurting the environment will be more transparent and will therefore strengthen the plaintiff’s case. In either scenario, the arguments presented will be groundbreaking. The trial is set for early Fall of 2017.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Andrea Sinele is a Junior Editor on MJEAL. She can be reached at firstname.lastname@example.org.
 Complaint, Juliana v. United States, Case No. 6:15-cv-01517-TC (D. Or. 2015), https://static1.squarespace.com/static/571d109b04426270152febe0/t/57a35ac5ebbd1ac03847eece/1470323398409/YouthAmendedComplaintAgainstUS.pdf.
 Eric Holthaus, The Kids Suing the Government Over Climate Change Are Our Best Hope Now (Nov. 14, 2016, 1:56 PM), http://www.slate.com/articles/health_and_science/science/2016/11/the_kids_lawsuit_over_climate_change_is_our_best_hope_now.html.
 Alec L. v. McCarthy, Case No. 1:11-cv-02235-RLW (D.C. Cir. 2012), https://static1.squarespace.com/static/571d109b04426270152febe0/t/5785722bff7c502ee8535738/1468363308028/Fed+MTD+Opinion.pdf.
 Michelle Nijhuis, The Teen-Agers Suing Over Climate Change (Dec. 6, 2016), http://www.newyorker.com/tech/elements/the-teen-agers-suing-over-climate-change.
 Alec L., Case No. 1:11-cv-02235-RLW.
 Arthur Nelson, Dutch Government Ordered to Cut Carbon Emissions in Landmark Ruling (June 24, 2015, 6:04 PM), https://www.theguardian.com/environment/2015/jun/24/dutch-government-ordered-cut-carbon-emissions-landmark-ruling.
 Obergefell v. Hodges, 135 S.C. 2584 (2015).
 Holthaus, supra note 2.
 Nijhuis, supra note 6.
 Justin Worland, Americans Oppose President Trump’s Environmental Deregulation, Poll Says (Feb. 9, 2017), http://time.com/4665481/donald-trump-environment-dergulation/.
 Ciara O’Rourke, The 11-Year-Old Suing Trump Over Climate Change (Feb. 9, 2017), https://www.theatlantic.com/science/archive/2017/02/trump-climate-lawsuit/516054/.