With President Trump's new "industry first" policies, one environmental case has taken on extra meaning. PhD student Valentina Dotto explores "Juliana v. United States".
During President Trump’s first year in office, there has been a sharp reversal in environmental policy thinking. Contrary to the previous Administration, the new National Security Plan puts industry before environment and even the word ‘climate change’ is defined as a ‘hoax’, a road block in making ‘America Great Again’.
It is in this scenario that it is interesting to note the case of Juliana v. United States, now scheduled for trial later this year.
The case was first submitted for declaratory and injunctive relief to the District of Oregon in 2015, during President Obama’s administration. The plaintiffs, all underage at the time of submission, and supported by the pro-bono lawyers of Our Children’s Trust, argued that the government’s actions against climate change failed to protect essential public trust resources thus violating present and future generations’ constitutional rights to life, liberty and property.
The case argument stressed four points:
- The federal government is obliged by the U.S. Constitution to hold in trust the nation’s natural resources and to protect the health and well-being of its citizens;
- Climate change is a man-made harm, and this can be fact checked by numerous peer reviewed articles and by the scientist community – this is not disputed by the defendants;
- The plaintiffs represent present and especially future generations thus they must be owed a higher degree of protection;
- The federal government is responsible for malfeasance.
The plaintiffs asked the Government and the Court to redress the harm done through stricter regulation and monetary compensation.
In April 2016, the U.S. government, under the Obama Administration, filed a motion to have the case dismissed which was denied. In November 2016, the U.S. District court set a trial date for February 2018.
In June 2017, the U.S. government, under the Trump Administration, appealed against the decision to no avail. In July 2017, they applied to the Ninth Court of Appeal to block all proceeding and called for the District’s court decision to be reconsidered on the ground that the claims are meritless, and the process of discovery would be too onerous.
After hearing which took place last December the application was denied and the case will proceed to trial in October of this year.
Why is this case potentially so ground breaking?
The centre of this debate is Natural Capital defined as the world’s stocks of natural assets which are geology, soil, air, water and the living things. It is clear that at the very heart of the lawsuits stands the question of who owns the Earth’s resources and to what extent the general public can claim the services that the Earth provides as common property.
Furthermore, while at State level local environmental problems can sometimes be addressed by existing governmental bodies, at inter-State level there is often a lack of authority that can implement and enforce environmental policies. This enormous diversity, Sax (1970) argues, is not just the product of different legal skills, it is attributable to the enormous disparity in legal standards which govern different resource problems. Thus, the U.S. legal system currently in place provides specific and limited responses to particular problems.
Finally, according to the Trump Administration National Strategy, industry must be put before environment. While economic growth and a healthy environment are outcomes that everybody would love to have since both provide utilities to the recipients, there is an inescapable, intrinsic trade-off between economic activity and environmental preservation.
This lawsuit is trying to address this issues by putting environmental preservation first place, enshrining the right of a healthy environment as a constitutional right. The plaintiffs rely on both the Due Process clause of the Fifth Amendment of the U.S. Constitution and the Doctrine of Public Trust as cornerstone assertions that Government's actions against climate change to date have failed to protect essential public trust resources thus violating the constitutional rights of this and future generations. Both claims are novel and both seek to redefine environmental resources as collective rights subject to the guardianship of the federal government.
The rights the Juliana plaintiffs are looking to have established would be constitutionally based and therefore protected from Congressional infringement. –think of Brown v. Board of Education (terminating racial segregation), Roe v. Wade (guaranteeing abortion rights) and Obergefell v. Hodges (guaranteeing same-sex marriage).The case also will give the judiciary the chance to advance U.S. climate change policy by incremental decision until such time as the Congress might be able and/or willing to enact a comprehensive climate change legislative framework.
The lawsuit is therefore a new type of climate litigation, since the claims brought against the federal government are grounded in constitutional rights. In the past, climate change cases have tended to take the form of statutory disputes rather than constitutional or common law disputes with the result that their effect has been necessarily limited.
So far the Courts have been sympathetic, and in particular to the view that the Government has public trust duties with respect to natural resources. U.S. District Judge Ann Aiken notably stated: “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.”
Since the EPA and the Executive are rolling back at break neck speed every regulation on greenhouse emissions with Congress lending a helping hand, let us hope that at least the lower Courts will feel it is their duty to do everything in their power to counteract the damage done. Should the case reach the U.S. Supreme Court however, as always all bets for the time being must be off.
