Law for Sustainability
Cover of tyl (The Young Lawyer), the publication of the Young Lawyers Division of the American Bar Association, Fall 2017
Some years ago I wrote about the Juliana case in which children (some grown now) have sued the government for letting global warming ruin their future. First it was a post by the Institute of Sustainable Energy (now the Institute for Global Sustainability) at Boston University, entitled “The Kelsey Cascadia Rose Juliana decision: A Ray of Light” [i]. I had also fallen in love with the name of the lead plaintiff. Trump had been elected and everyone I knew was incredibly depressed. I really did experience news of the case as a brightening.
I quoted John Bonine of the University of Oregon Law School to bring that light to the attention of others who care about clean energy but often pay too little attention to the legal theories that underly our ability to make it happen:
Professor Mary Wood's incredibly innovative legal theory about how to give a kick in the pants to the government to fight against climate change has been endorsed by the US District Court today….This is such a fine example of the link between the legal theories of law professors and practical implementation in courts. And even if it is later rejected by higher courts, it demonstrates the need and usefulness of new thinking in what will soon be a rather dark era.
What was the light in Juliana? The words of federal district court judge Anne Aiken, who resonantly cited the principles of the equal marriage case (Obergefell) to say:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights ... did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning….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.
I thought that beautiful music, rich in reason and gratitude for the gift of the chance to manifest democracy.
I quoted John Bonine of the University of Oregon Law School to bring that light to the attention of others who care about clean energy but often pay too little attention to the legal theories that underly our ability to make it happen:
Professor Mary Wood's incredibly innovative legal theory about how to give a kick in the pants to the government to fight against climate change has been endorsed by the US District Court today….This is such a fine example of the link between the legal theories of law professors and practical implementation in courts. And even if it is later rejected by higher courts, it demonstrates the need and usefulness of new thinking in what will soon be a rather dark era.
What was the light in Juliana? The words of federal district court judge Anne Aiken, who resonantly cited the principles of the equal marriage case (Obergefell) to say:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights ... did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning….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.
I thought that beautiful music, rich in reason and gratitude for the gift of the chance to manifest democracy.
I later wrote about the case as it survived onslaught after onslaught in an article entitled “Can Our Children Trust Us”, which was dramatized on the cover of the American Bar Associations tyl, The Young Lawyer publication. I was playing with the word “trust”, as Mary Wood’s idea about suing to protect the climate was built on that of environmental law pioneer Joseph Sax, who wrote about the “public trust”, the idea that the government has a duty to protect what we own in common. If we don’t treat our commons as something that has to be protected (our government is our tool to use or not), then we are not to be trusted to preserve the blessings of liberty for posterity.
In that article I spoke to young lawyers directly about my feelings:
In my opinion, this case is a shining example of what law can and must be. It gives me some hope that reason and humanity can prevail, and that we need not continue to cooperate in our own destruction. Such hope results in a reason to believe our children and future generations can indeed rely on us to uphold the spirit of the law and purpose behind government.
The Purpose of Government:
Think with me for a moment about the purposes of government. What does it mean that the framers wrote in their introduction that their purpose in forming one was to promote the General Welfare? Can we agree that it must mean we cannot turn away – and we must not allow our government to turn away - when a key common resource is being destroyed? That it is not ok to do nothing about the instability of the planet’s temperature or rising acidity or height of the oceans, particularly when our actions are causing these immense problems?
I sent it in thinking they would never publish it, but they did, and even made it the cover issue. A recent search could not locate it anymore, however.[ii]
Then the federal government succeeded in getting the Appeals Court to rule that it was not the court’s place to oversee the rest of the government concerning this matter. They said that what the plaintiffs asked for could not be granted. The plaintiffs could not show that the relief they sought was either substantially likely to redress their injuries or within the Court’s power to award. This cramped view of “redressability” felt to me a disservice to the idea of a judiciary, reducing its voice to a peep, crippling its hands. There was hope, though, because one judge dissented, and the plaintiffs could amend their complaint, and come back to court.
And that is what happened, and the judicial system got a second chance to show that it could be a part of the check and balance system so crucial to limiting excess and providing some equity. The courts got a second chance to show the public that they are not necessarily complicit with the failures of Congress and the Executive to act.
The god of justice, I like to think, has breathed life back into the case. The defendants have submitted an amended complaint, which is not unreasonable in its request for a court order to the other branches of government now failing to act to protect the people, and Judge Anne Aiken has again restored my faith that our judicial system can work as one thinks it ought to – for the benefit of the people. She wrote on December 29, 2023:
Defendants maintain that, because tackling the climate crisis is complex, and no single remedy may entirely redress plaintiffs’ harms caused by climate change, the judiciary is constrained by the Constitution from offering any redress at all. See defs.’ mot. to dismiss (“Mot.”) at 11-13.
The government was arguing that the court could do nothing at all.
Defendants contend that the issue of climate change is political in its nature, and that redress of plaintiffs’ alleged injuries must be sought from Congress. Id. at 28. That unnecessarily narrow view overlooks one clear and constitutional path to shielding future generations from impacts of the onslaught of environmental disaster: that it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).[iii]
This, again, is judicial music. She writes that just because it’s such a big problem that no one body can solve, courts can’t “throw up their hands”, and can’t “shrink from its role”. Words like a fresh breeze ripple through this decision, stirring up the hopes that our current sense of defeat has caused to lay flat for too long:
The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused.
Yes, thank you! It is capable! The courts can act and in fact are duty-bound to do something.
The government had argued that the plaintiffs had failed to allege a “cognizable state-created danger claim”, when the plaintiffs in fact had laid out pretty well how the government had fostered fossil fuel use. We may ask why this administration is seeking the dismissal of this case – because no one likes to be told what to do? This is inescapable, might as well go along with fate. It has to be bad as well as silly to be arguing that there is “no constitutional right to a stable climate”[iv] – is this a case of inertia?
The question is whether the plaintiffs have now asked for something the court can grant, even when so many judges are uncomfortable with ordering the administration to do anything – how can we supervise their performance, they ask – with our limited resources? Aiken says the plaintiffs now only ask for “an injunction restraining [d]efendants from carrying out policies, practices, and affirmative actions that render the national energy system unconstitutional in a manner that harms [p]laintiffs,” and only “if deemed necessary, just and proper.” The defendants argue that the relief, if granted, would not do much of anything for the plaintiffs, but the court replied that “an order to defendants to refrain from certain fossil fuel activities which are causing plaintiffs’ injuries would redress those injuries”.
It would.
This feels like a great example of reality getting lost in legal theories that serve either the conservative right’s love of the fossil fuel industry, or whatever it is that is holding back this administration.[v] The questions about how courts issue orders are complex, but to think there is nothing they can do looks like nothing more than a failure to think.
The judge reminds us that courts have issued orders to implement busing to desegregate schools, to assure a “fair share of fish” for Native Americans suing under treaties, for the reform of prison conditions, and in cases having to do with land use and low-income housing. Yes, we do have a real court system that can act, and it doesn’t have to sit back and watch as the other branches fail to do their job.
Although the usual idea is that a court orders a particular agency to reform itself, in this case the order would go out to many agencies. But instead of this being a problem the judge points out that “a court order directing the agencies to work together, outside their silos to oversee resolution of a complex, multi-agency problem may prove especially constructive where a practical solution has eluded the entire government for decades” (page 27). As a former bureaucrat I loudly applaud this idea. Though this request for a multiagency order was not granted at this time, the idea is reserved for the future, if necessary.
The court found no problem with granting the plaintiff’s request for a procedure that could result in a declaratory judgment, for “It is emphatically the province and duty of the judicial department to say what the law is,” quoting Marbury v. Madison, 5 U.S. at 177. (page 31 of Aiken’s ruling). Following a declaratory ruling the parties can come together and work something out, and there can be a special master, and supply the court with fact-finding and the results of deliberation, so that the court itself does not assume the role of the legislature or the executive, avoiding trampling on the role of the other branches, but simply approves of the process in what’s called a consent decree, if the parties can reach agreement. “Unlike structural injunctions, which envision an on-going dialogue between the court and the parties, the declaratory relief model facilitates a dialogue between the parties.”
DOJ can sit down with the plaintiffs and have a dialogue about what can be done to get started on doing what’s necessary for this country. The judge is telling it what it should do.
The plaintiffs argued the Constitution recognizes “inherent and inalienable rights” and that there is a “basic societal contract of the Constitution to protect citizens and “posterity”—future generations—from government infringement upon basic freedoms and basic rights.” The plaintiffs claim that “defendants’ affirmative aggregate acts have been and are infringing on plaintiffs’ liberties, by knowingly creating a destabilized climate system that is causing irreversible harm.” We all know this to be true when we see approvals for drilling and subsidies for the industry that should have been eliminated decades ago.
The judge reminds us that it’s well-settled that when a fundamental right is imposed upon a court must exercise strict scrutiny of government action. What is a fundamental right? Something that is “deeply rooted in our Nation’s history and tradition” or (2) “fundamental to our scheme of ordered liberty” (page 39). Again, the judge said she exercised her reasoning judgment to find that the rights infringed upon by government action are fundamental. She explained in the plainest of terms:
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, damage property, threaten human food sources, and dramatically alter the planets ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.
She cannot tell plaintiffs “that ‘life’ cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. Again, Justice Marshall is quoted: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect.” Marbury, 5 U.S. at 174. These double negatives affirm the duty of the government to refrain from infringing on these constitutional rights.
These are common sense principles but they do not dispose of the case. Still, the defendants argue that there is no affirmative duty on the part of the government to act. But the judge says, when the government is the cause, it has the duty – this is called “state-created danger”. She says that the plaintiffs will have a lot to prove when they proceed to trial:
(1) the government’s acts created the danger to the plaintiff;
(2) the government knew its acts caused that danger; and
(3) the government with deliberate indifference failed to act to prevent the alleged harm.
That these are all required will prevent a floodgate of litigation opening.
The judge also recognized the validity of the plaintiff’s public trust claim as regards ocean acidification and rising ocean temperatures. The government holds territorial seas in trust for the people and has a responsibility to protect them. It would be nice to see someday the concept of the trust duty extended to government, but Judge Aiken only has the watery precedents to build on at this time. Certainly no radical activist judge making new law, she applies the oldest principles in our body of law.
At the conclusion of her ruling she noted that this is not the only case of its kind – because people like Juliana’s attorney Julia Olson have applied that idea about suing to protect the atmosphere – these cases are happening all over the world now (see, for example, the Urgenda case). Aiken cited the ruling in a recent US case,[vi] for the principle that the judicial branch of government can no longer “abdicat[e] responsibility to apply the rule of law.” Id. at 365 (Wilson, J., concurring). She is not alone. Perhaps judges on the appeals court will look again at Judge Staton’s dissent from the dismissal of the original case. Maybe this new strategy will work better.
It is sad to note that it was Trump’s helper Jeffrey Clark who fought to kill the children’s argument that the government is contributing to the destruction of their future welfare both through action and inaction, but it is an attorney Obama supported and who works for Biden who now continues to try to get the case dismissed.
This administration does not include Jeffrey Clark. Can it now do the adult thing and work out an agreement with these representatives of the children of yesterday, today, and tomorrow? Surely that will be more useful, to get going, than to keep stalling the necessary response. That the courts should act is one thing, but that’s a backstop to the executive not acting. We can be more efficient than this in facing the inevitable need for responsible policy.
[i] https://www.bu.edu/igs/files/2016/11/Ray-of-Light-ISE_Rick-Reibstein_11.17.16.pdf
[ii] It is still findable behind paywalls. Copies of the original available upon request to [email protected].
[iii] Kelsey Cascadia Rose Juliana v US, Doc. 565, Case 6:15-cv-01517-AA in the District Court of Oregon, Eugene Division, 20231229_docket-615-cv-01517_opinion-and-order.pdf (climatecasechart.com), page 4.
[iv] https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230622_docket-615-cv-01517_motion-to-dismiss-1.pdf
[v] Perhaps Democrats, any remaining moderate Republicans, and Independents are cautiously eyeing fuel costs and public opinion and are not ready to “kick oil” as young people ask, until there is a clearer way forward.
[vi] Matter of Hawai'i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023).
In that article I spoke to young lawyers directly about my feelings:
In my opinion, this case is a shining example of what law can and must be. It gives me some hope that reason and humanity can prevail, and that we need not continue to cooperate in our own destruction. Such hope results in a reason to believe our children and future generations can indeed rely on us to uphold the spirit of the law and purpose behind government.
The Purpose of Government:
Think with me for a moment about the purposes of government. What does it mean that the framers wrote in their introduction that their purpose in forming one was to promote the General Welfare? Can we agree that it must mean we cannot turn away – and we must not allow our government to turn away - when a key common resource is being destroyed? That it is not ok to do nothing about the instability of the planet’s temperature or rising acidity or height of the oceans, particularly when our actions are causing these immense problems?
I sent it in thinking they would never publish it, but they did, and even made it the cover issue. A recent search could not locate it anymore, however.[ii]
Then the federal government succeeded in getting the Appeals Court to rule that it was not the court’s place to oversee the rest of the government concerning this matter. They said that what the plaintiffs asked for could not be granted. The plaintiffs could not show that the relief they sought was either substantially likely to redress their injuries or within the Court’s power to award. This cramped view of “redressability” felt to me a disservice to the idea of a judiciary, reducing its voice to a peep, crippling its hands. There was hope, though, because one judge dissented, and the plaintiffs could amend their complaint, and come back to court.
And that is what happened, and the judicial system got a second chance to show that it could be a part of the check and balance system so crucial to limiting excess and providing some equity. The courts got a second chance to show the public that they are not necessarily complicit with the failures of Congress and the Executive to act.
The god of justice, I like to think, has breathed life back into the case. The defendants have submitted an amended complaint, which is not unreasonable in its request for a court order to the other branches of government now failing to act to protect the people, and Judge Anne Aiken has again restored my faith that our judicial system can work as one thinks it ought to – for the benefit of the people. She wrote on December 29, 2023:
Defendants maintain that, because tackling the climate crisis is complex, and no single remedy may entirely redress plaintiffs’ harms caused by climate change, the judiciary is constrained by the Constitution from offering any redress at all. See defs.’ mot. to dismiss (“Mot.”) at 11-13.
The government was arguing that the court could do nothing at all.
Defendants contend that the issue of climate change is political in its nature, and that redress of plaintiffs’ alleged injuries must be sought from Congress. Id. at 28. That unnecessarily narrow view overlooks one clear and constitutional path to shielding future generations from impacts of the onslaught of environmental disaster: that it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).[iii]
This, again, is judicial music. She writes that just because it’s such a big problem that no one body can solve, courts can’t “throw up their hands”, and can’t “shrink from its role”. Words like a fresh breeze ripple through this decision, stirring up the hopes that our current sense of defeat has caused to lay flat for too long:
The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused.
Yes, thank you! It is capable! The courts can act and in fact are duty-bound to do something.
The government had argued that the plaintiffs had failed to allege a “cognizable state-created danger claim”, when the plaintiffs in fact had laid out pretty well how the government had fostered fossil fuel use. We may ask why this administration is seeking the dismissal of this case – because no one likes to be told what to do? This is inescapable, might as well go along with fate. It has to be bad as well as silly to be arguing that there is “no constitutional right to a stable climate”[iv] – is this a case of inertia?
The question is whether the plaintiffs have now asked for something the court can grant, even when so many judges are uncomfortable with ordering the administration to do anything – how can we supervise their performance, they ask – with our limited resources? Aiken says the plaintiffs now only ask for “an injunction restraining [d]efendants from carrying out policies, practices, and affirmative actions that render the national energy system unconstitutional in a manner that harms [p]laintiffs,” and only “if deemed necessary, just and proper.” The defendants argue that the relief, if granted, would not do much of anything for the plaintiffs, but the court replied that “an order to defendants to refrain from certain fossil fuel activities which are causing plaintiffs’ injuries would redress those injuries”.
It would.
This feels like a great example of reality getting lost in legal theories that serve either the conservative right’s love of the fossil fuel industry, or whatever it is that is holding back this administration.[v] The questions about how courts issue orders are complex, but to think there is nothing they can do looks like nothing more than a failure to think.
The judge reminds us that courts have issued orders to implement busing to desegregate schools, to assure a “fair share of fish” for Native Americans suing under treaties, for the reform of prison conditions, and in cases having to do with land use and low-income housing. Yes, we do have a real court system that can act, and it doesn’t have to sit back and watch as the other branches fail to do their job.
Although the usual idea is that a court orders a particular agency to reform itself, in this case the order would go out to many agencies. But instead of this being a problem the judge points out that “a court order directing the agencies to work together, outside their silos to oversee resolution of a complex, multi-agency problem may prove especially constructive where a practical solution has eluded the entire government for decades” (page 27). As a former bureaucrat I loudly applaud this idea. Though this request for a multiagency order was not granted at this time, the idea is reserved for the future, if necessary.
The court found no problem with granting the plaintiff’s request for a procedure that could result in a declaratory judgment, for “It is emphatically the province and duty of the judicial department to say what the law is,” quoting Marbury v. Madison, 5 U.S. at 177. (page 31 of Aiken’s ruling). Following a declaratory ruling the parties can come together and work something out, and there can be a special master, and supply the court with fact-finding and the results of deliberation, so that the court itself does not assume the role of the legislature or the executive, avoiding trampling on the role of the other branches, but simply approves of the process in what’s called a consent decree, if the parties can reach agreement. “Unlike structural injunctions, which envision an on-going dialogue between the court and the parties, the declaratory relief model facilitates a dialogue between the parties.”
DOJ can sit down with the plaintiffs and have a dialogue about what can be done to get started on doing what’s necessary for this country. The judge is telling it what it should do.
The plaintiffs argued the Constitution recognizes “inherent and inalienable rights” and that there is a “basic societal contract of the Constitution to protect citizens and “posterity”—future generations—from government infringement upon basic freedoms and basic rights.” The plaintiffs claim that “defendants’ affirmative aggregate acts have been and are infringing on plaintiffs’ liberties, by knowingly creating a destabilized climate system that is causing irreversible harm.” We all know this to be true when we see approvals for drilling and subsidies for the industry that should have been eliminated decades ago.
The judge reminds us that it’s well-settled that when a fundamental right is imposed upon a court must exercise strict scrutiny of government action. What is a fundamental right? Something that is “deeply rooted in our Nation’s history and tradition” or (2) “fundamental to our scheme of ordered liberty” (page 39). Again, the judge said she exercised her reasoning judgment to find that the rights infringed upon by government action are fundamental. She explained in the plainest of terms:
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, damage property, threaten human food sources, and dramatically alter the planets ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.
She cannot tell plaintiffs “that ‘life’ cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. Again, Justice Marshall is quoted: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect.” Marbury, 5 U.S. at 174. These double negatives affirm the duty of the government to refrain from infringing on these constitutional rights.
These are common sense principles but they do not dispose of the case. Still, the defendants argue that there is no affirmative duty on the part of the government to act. But the judge says, when the government is the cause, it has the duty – this is called “state-created danger”. She says that the plaintiffs will have a lot to prove when they proceed to trial:
(1) the government’s acts created the danger to the plaintiff;
(2) the government knew its acts caused that danger; and
(3) the government with deliberate indifference failed to act to prevent the alleged harm.
That these are all required will prevent a floodgate of litigation opening.
The judge also recognized the validity of the plaintiff’s public trust claim as regards ocean acidification and rising ocean temperatures. The government holds territorial seas in trust for the people and has a responsibility to protect them. It would be nice to see someday the concept of the trust duty extended to government, but Judge Aiken only has the watery precedents to build on at this time. Certainly no radical activist judge making new law, she applies the oldest principles in our body of law.
At the conclusion of her ruling she noted that this is not the only case of its kind – because people like Juliana’s attorney Julia Olson have applied that idea about suing to protect the atmosphere – these cases are happening all over the world now (see, for example, the Urgenda case). Aiken cited the ruling in a recent US case,[vi] for the principle that the judicial branch of government can no longer “abdicat[e] responsibility to apply the rule of law.” Id. at 365 (Wilson, J., concurring). She is not alone. Perhaps judges on the appeals court will look again at Judge Staton’s dissent from the dismissal of the original case. Maybe this new strategy will work better.
It is sad to note that it was Trump’s helper Jeffrey Clark who fought to kill the children’s argument that the government is contributing to the destruction of their future welfare both through action and inaction, but it is an attorney Obama supported and who works for Biden who now continues to try to get the case dismissed.
This administration does not include Jeffrey Clark. Can it now do the adult thing and work out an agreement with these representatives of the children of yesterday, today, and tomorrow? Surely that will be more useful, to get going, than to keep stalling the necessary response. That the courts should act is one thing, but that’s a backstop to the executive not acting. We can be more efficient than this in facing the inevitable need for responsible policy.
[i] https://www.bu.edu/igs/files/2016/11/Ray-of-Light-ISE_Rick-Reibstein_11.17.16.pdf
[ii] It is still findable behind paywalls. Copies of the original available upon request to [email protected].
[iii] Kelsey Cascadia Rose Juliana v US, Doc. 565, Case 6:15-cv-01517-AA in the District Court of Oregon, Eugene Division, 20231229_docket-615-cv-01517_opinion-and-order.pdf (climatecasechart.com), page 4.
[iv] https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230622_docket-615-cv-01517_motion-to-dismiss-1.pdf
[v] Perhaps Democrats, any remaining moderate Republicans, and Independents are cautiously eyeing fuel costs and public opinion and are not ready to “kick oil” as young people ask, until there is a clearer way forward.
[vi] Matter of Hawai'i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023).
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