Uncertain Future for the Juliana Case After Yet Another Climate Change Courtroom Defeat
Environmental activists were handed their second defeat in two months after the Ninth Circuit Court of Appeals dismissed the youth climate lawsuit, Juliana v. United States, after finding that the plaintiffs did not have standing to sue. Following on ExxonMobil’s win in New York, the decision shows that despite the backing of environmentalist mega-donors like the Rockefeller Brothers Fund and Leonardo Di Caprio, activists are struggling to win major climate cases.
Environmental activists had planned to use the Juliana case to force the federal government to enact a slate of anti-emissions policies that were otherwise unlikely to be passed. Julia Olson, chief legal counsel for Our Children’s Trust, made this clear at a UCLA Law School event last spring, where she told moderator UCLA law professor Ann Carlson that the case’s goal was a forced energy transition.
“The goal, and I think we will get this from our district court judge, is for her to order the government to prepare a plan that would essentially require our energy system to transition almost completely away from fossil fuels by 2050 and most of that transition occurs in the first 10 years,” Olson said.
Jeff Wood, a partner at Baker Botts LLP in Washington D.C. and the former Acting Assistant Attorney General of the Justice Department’s environment division, told Western Wire the case involves “novel claims by plaintiffs pressing a political agenda rather than asserting actual legal claims and, so far, the Ninth Circuit has rightfully concluded that federal courts are not well-suited or allowed to redress the kinds of harms that the plaintiffs are alleging.”
“It’s the responsibility of the politically elected branches,” Wood said, namely Congress. “One message for the Juliana plaintiffs from the court’s decision is that they should, like all other citizens, petition the elected branches of government to redress their grievances, not the courts,” he added.
According to Ninth Circuit procedure, should the plaintiffs request rehearing by the broader en banc court, which seems likely, 11 judges, including the Chief Judge, will rehear the case if a majority of active, non-recused judges vote in favor of rehearing en banc. The activists could also seek review by the United States Supreme Court.
Wood said it was unlikely, in his view, that the Ninth Circuit would actually agree to rehear the case, and from a strategic standpoint for the environmental activist community, the case was a “bad vehicle” for their policy objectives.
“If they push this further, there are some things the Supreme Court is certainly not going to agree with,” Wood said, including the issue of standing by the plaintiffs. “No court can or should take over the entire U.S. energy and environmental regulatory structure,” he added.
Beyond pushing to enforce climate change legislation through the courts, a win in the Juliana case could also have resulted in a large payout by energy companies to activists, who admitted that the money was a concern. The Ninth Circuit Court’s decision puts that presumption into question—something that does not bode well for other high-profile climate liability cases, including the Boulder climate change suit.
Previously, activists such as David Bookbinder, the lead counsel at the Niskanen Center and an attorney on the case, believed that the nuisance-based cases against ExxonMobil and other oil companies would be clear-cut.
“[It’s] a money judgement,” Bookbinder said of the climate liability suits. “We have damages, we count up what it’s worth, and [oil companies] owe us that amount. That’s very simple.”
This very simple plan was underwritten by major donations from a slew of liberal foundations. The Rockefeller Brothers Fund has given Our Children’s Trust $180,000 in grants since 2014 as part of a program to “advance solutions to climate change.” Meanwhile, in 2017, the Leonardo DiCaprio Foundation (LDF) sent $1.3 million to a host of recipients, including Our Children’s Trust, as part of $15.6 million effort aimed in part at supporting “innovating grass roots (sic) efforts aimed at combating climate change.”
In a statement accompanying the LDF announcement, Olson explained that the grant would help her organization “advance the global climate agenda” through lawsuits.
“Where political branches of governments have failed us, these youth are bringing landmark actions in their state and federal courts to secure the legally binding right to a healthy atmosphere and stable climate, in accordance with current science, for the benefit of all present and future generations,” she said.
Other groups supporting Our Children’s Trust include the Cottonwood Foundation, Charles Engelhard Foundation, Elizabeth Lafayette Fund, Global Greengrants Fund, Jubitz Family Foundation, Libra Foundation, MRG Foundation, Northwest Fund for the Environment, Oregon Community Foundation – Evergreen Hill Fund, Patagonia, and Wallace Global Foundation.
Those donations were supposed to help propel the youth plaintiffs to success. After the Ninth Circuit Court’s decisions, some of those close to the case are advising them to throw in the towel and warning activists not to try to appeal the case to the Supreme Court.
“The general rule, of course, is you don’t want an adverse Supreme Court decision, and it’s as simple as that,” Foley Hoag LLP attorney Seth D. Jaffe told Bloomberg Government. Jaffe, who tracks environmental litigation across the country, believes that the activists would almost certainly lose a Supreme Court case.
“They’re going to lose before the Supreme Court, almost certainly, so why take the chance?” Jaffe added.
A loss before the Supreme Court could have impacts beyond just frustrating activists’ immediate goals. Sympathetic law professors are warning that the case could give the court an opportunity to rule on the question of standing. According to Carlson, who directs the Emmett Institute on Climate Change and the Environment at the UCLA Law School, the court would likely be “less generous” on the standing question, something that could “really wreak a lot of havoc for other plaintiffs and other climate change cases and even other environmental cases.”
Activists are particularly worried that court might choose to revisit the seminal greenhouse gas emissions cases, Massachusetts v. EPA, which gave the EPA authority to regulate carbon dioxide.
“As disappointing as the panel decision is, it could be far worse if it were adopted and perhaps expanded by the conservative majority on the Court,” said Vermont Law professor Pat Parenteau.