On December 11, a Ninth Circuit panel heard argument in San Francisco in an unusual appellate proceeding that presents the question whether the U.S. Constitution provides judicially enforceable protection to individual citizens against governmental actions that are alleged to cause or contribute to climate change.
In June, the U.S. Department of Justice (DOJ) filed a rare mandamus petition in the Ninth Circuit in Juliana v. United States, a lawsuit pending in the U.S. District Court for the District of Oregon. The Juliana plaintiffs claim that the President and other federal government officials have violated their right to a stable climate, which the plaintiffs characterize as a fundamental, unenumerated right protected by the Due Process Clause of the Fifth Amendment to the Constitution. The plaintiffs separately claim, on a public-trust theory, that the federal government has an enforceable obligation to ensure that the atmosphere and other resources are protected from climate change. In November 2016, the district court denied DOJ’s motion to dismiss the complaint. DOJ requested permission for an interlocutory appeal. After the district court denied that request, DOJ filed its mandamus petition in the Ninth Circuit.
In its petition, DOJ asks the Ninth Circuit to direct the district court to dismiss the Juliana case. DOJ argues that the district court’s decision upholds an “amorphous and sweeping right” as judicially enforceable, and would permit that court “to dictate and manage – indefinitely – all federal policy decisions related to fossil fuels, energy production, alternative energy sources, public lands, and air quality standards.” The plaintiffs respond that their constitutional claim is grounded in established, fundamental rights to life and personal security; property; autonomy; and dignity. They further argue that the drastic and extraordinary remedy of a writ of mandamus is not needed to short-circuit the case. A wide range of non-governmental organizations, plus a group of several dozen law professors, submitted eight proposed amicus briefs supporting the plaintiffs.
Professor Jim May and Damien Schiff of the Pacific Legal Foundation discuss the oral arguments and potential impacts of the Ninth Circuit’s forthcoming decision, including possible implications for climate-change litigation pending in other courts. The Ninth Circuit may weigh in on a number of very important questions, including questions about justiciability (Article III standing and the political-question doctrine); the substantive reach of the substantive due-process and public-trust doctrines; and the criteria for granting mandamus relief.
James R. May, Distinguished Professor of Law, Widener University Delaware Law School
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Andrew R. Varcoe, Partner, Boyden Gray & Associates PLLC
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