On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change.
The Juliana plaintiffs – most of whom were minor children when the suit was filed in 2015 – argue, inter alia, that the federal government has violated their fundamental right to a stable climate grounded in the Due Process and Equal Protection Clauses of the Fifth Amendment to the Constitution. The plaintiffs also argue that the government has breached its duty to hold the atmosphere in trust under federal common law principles. In 2016, the district court denied the federal government’s motion to dismiss the complaint. After many twists and turns (including unusual mandamus proceedings in the Ninth Circuit and the Supreme Court), the district court certified the case for interlocutory appeal to the Ninth Circuit in late 2018. The federal government argues that the plaintiffs lack standing; that the case is not justiciable in any federal court under Article III of the U.S. Constitution; that the plaintiffs’ claims were not properly brought pursuant to the Administrative Procedure Act; and that the plaintiffs have failed to state a claim on the merits upon which relief can be granted.
Prof. James R. May, Distinguished Professor of Law, Widener University Delaware Law School
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Wednesday, June 19th, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is a litigation update on Juliana v. United States. My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are very fortunate to have with us an accomplished panel to discuss this topic, and leading it as our moderator is Professor Jonathan H. Adler, who is Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. After our speakers give their remarks, and Professor Adler moderating their discussion, we will have an audience Q&A, so please keep in mind what questions you have at that time. Thank you very much for sharing with us today. Professor Adler, the floor is yours.
Prof. Jonathan H. Adler: Thank you. It’s a pleasure to be here to moderate this discussion on this important high-profile case involving climate change.
Earlier this month, the U.S. Court of Appeals for the Ninth Circuit heard oral argument in the interlocutory appeal in Juliana v. United States – a case in which that the plaintiffs argue, among other things, that the federal government has violated its constitutional obligation to maintain a safe climate system. This is a case that has received a lot of attention, profiled on 60 Minutes, among other places, and is certainly important for the future and development of environmental law.
To discuss this case and what happened at the oral argument earlier this month, we are joined by James May, who is the Distinguished Professor of Law at Widener University and Delaware Law School. He has been the author or contributor to amicus briefs in numerous climate change related cases, including the Kivalina, Comer, and American Electric Power cases.
Now, we are also joined by Damien Schiff, who is a senior attorney at the Pacific Legal Foundation where he actively participates both as attorney and as an amicus and various environmental law cases. I’m going to ask each of them to apprise some background on the case and what happened, and, as Wes mentioned, we will then turn to audience questions.
To start off, I was gonna ask Professor May to give us a brief overview of the plaintiffs’ claims in this case and what occurred in the trial court prior to the interlocutory appeal that was argued earlier this month.
Prof. James R. May: Yes. And good afternoon, everyone. It’s really an extraordinary case. It started with a causative action that were both constitutional and common-law based. So the case is brought by a non-profit called Our Children’s Trust on behalf of a couple of handfuls of kids. And they argue that the federal government—and, in particular, that point in time, the Obama administration—was violating constitutional and common-law requirements to do more to address climate change. So just let me take those in quick order. So the first is that they argue that there is, under the Due Process Clause of the Fifth Amendment of the Constitution, a fundamental right to a stable climate. And I’m compressing the claim somewhat, but that’s what it boils down to. So they argue that there is a fundamental right and that is deeply rooted in American history, and also essential to ordered liberty, and so, therefore, they had a cognizable legal claim under the Fifth Amendment. And so that was one of their claims.
One other claim was under the Equal Protection Clause. Also, an aspect of Fifth Amendment jurisprudence, through the 14th, through reverse incorporation but arguing that children constitute either a suspect or a quasi-suspect class under the Constitution and likely the fundamental right claim that federal courts have to employ a strict scrutiny analysis because kids have immutable characteristics, and they can’t protect themselves politically, and so government action should be subject to a strict scrutiny analysis. So that was another claim.
And then the common-law claims were steeped in federal common law in the public trust doctrine. So the plaintiffs argued that the atmosphere is part of the public trust that’s held in trust by the federal government and that the federal government wasn’t sufficiently holding it in trust.
So, as I mentioned, the case initially was brought against the Trump administration. Of course, that all changed in 2016 – I’m sorry – against the Obama administration. But that all changed in 2016. And the Trump administration took it on with, one might say, an enhanced level of vigor and rigor in defending the government’s actions in arguing that the plaintiffs had failed to state a claim, that it didn’t have standing, that separation of power has precluded the Judicial Branch from getting involved, and that either there isn’t a common law, in general, or a common-law claim for public trust doctrine violations; or if there is a public trust doctrine in the federal common law, it’s only to address certain kinds of natural resources held in trust, like water for the most part, and doesn’t include the atmosphere. And even if all of those things do exist, that there is a public trust doctrine under federal common law—and that it’s more than about water—that the plaintiffs hadn’t met their burden for aiding that claim either.
There’s a lot of twists and turns here, which we don’t have time to go into. But the district court found that the plaintiffs had standing and that the claims were cognizable. It didn’t find that the plaintiffs prevailed in their claims, but it found that the claims could go forward, and the Trump administration first requested that the court certify the case for interlocutory appeal. The court declined that invitation, and then, ultimately, the Trump administration went to the Ninth Circuit under writ of mandamus and asked the Ninth Circuit to take the case away and filed similar proceedings before the U.S. Supreme Court, which left it back into the hands of the Ninth Circuit with some language suggesting that these claims, really, are pushing constitutional, if not common-law, boundaries. And the Ninth Circuit, then, returned it back to the district court, which, at that point in time, certified it for interlocutory appeal. And that’s where it’s procedurally at now.
Prof. Jonathan H. Adler: I would like to now turn over to Damien Schiff to provide us a brief overview of the federal government’s arguments, and why did they seek an interlocutory appeal, and what are the arguments that the federal government presented to the Ninth Circuit.
Damien M. Schiff: Yeah. Thank you, Professor Adler, and thank you also to Professor May. Great to join again on discussing this very interesting case. And, of course, thanks to The Federalist Society for providing an opportunity in which to discuss it.
The case is remarkable, I think, in part because there was even a district court that entertained seriously the plaintiffs’ claims. I think most practitioners in this area looking at the complaint would’ve thought that surely this is going to end pretty quickly on a motion to dismiss, and yet it didn’t. And, in fact, I think that that significantly surprised the government, and that’s in part why, as Professor May noted, there was such an extraordinary effort on the part of the government to get the Ninth Circuit or the Supreme Court to stop the proceedings.
As I’m sure everyone on the call knows that when a trial court denies a motion to dismiss, that isn’t typically speaking immediately appealable. You have to stay in the trial court until the thing is completely over. And the government was very reluctant to do that, largely, because it feared—and I don’t think these fears were unfounded—that the plaintiffs would embark upon a significant digging expedition through discovery, through deposition of high-profile government officials, including at one point even, possibly, the President of the United States.
So, now, that concern led to this extraordinary upheld procedure practice to stop the case. That was not successful, initially, after the motion to dismiss, and so the government filed a motion for judgement on the pleadings and a motion for summary judgement, both of which were again denied. And as the trial date approached for these claims, these unprecedented claims, the government became, I think, particularly concerned. And at that point, the Supreme Court, although, it didn’t grant a stay—as Judge Hurwitz, during the oral argument earlier this month, noted—the court effectively granted a “non-stay” stay by saying that these claims are extraordinary and that the Ninth Circuit may very well be able to provide some sort of interim relief. And, in fact, that is what has happened. The Ninth Circuit suggested that the district court reconsider the idea of certifying an interlocutory appeal. The district court did reconsider, and the Ninth Circuit ultimately took it up.
As far as the issues on appeal, Professor May has already highlighted that the significant ones -- but I would say the main issue, and I think, really, the lead issue for the government, is a question of standing, and the related question of separation of powers. And even more broadly than just the question of “Do the plaintiffs make out a case under the three-part framework for standing of injury, traceability, and redressability?” I think even beyond that, the government’s larger argument is “This just doesn’t look like an issue that’s really well placed for judicial resolution.” In the government’s briefing, as well as in the oral argument, references to “What would the courts of Westminster, prior to the Revolution, have thought of a case like this?” -- and if we think of this, it would’ve been extraordinary in that context and that should give us pause here that it suggests that although this may very well be a very significant underlying question, how do we respond to climate change? What are the best policies to avoid any sort of environmental disaster? Obviously, incredibly, important issues, but are those issues really, by their nature, better addressed by the Executive and the Legislative Branches?
So I think we can go into further detail, later on in the call, over the specific defense that the government had, but I think that, really, the main argument is that this is a case that really is not well suited for judicial resolution. Although, the particular plaintiffs here, as children, may have by definition particularized injuries, nevertheless, every person in the United States, and for that matter, in the world, is going to have a type of climate related injury. And so it seems as if the court is being invited by the case to entertain the generalized grievance, which the Supreme Court has regularly said that federal judiciary is not allowed to adjudicate.
My last point, before we go into the oral argument analysis, is that this case is also a little peculiar because, although, we haven’t really had any Ninth Circuit or Supreme Court input on the case yet, substantively, we’ve had these suggestions which have been elicited because of the motion practice and the writ practice at the Supreme Court and the Ninth Circuit have entertained because of the government’s attempt to stop the case from going to trial.
So we have the Ninth Circuit, more than once, saying these are pretty broad claims. We think, as the case goes on, we will expect the plaintiffs to substantially narrow their claims. Then, we have the Supreme Court saying, “Well, we won’t grant a permanent stay,” or “We won’t eliminate the case now, but we think that the claims raised are unprecedented and there is a fair basis for significant difference of opinion over whether those claims are meritorious or even whether they can be subject to any sort of federal adjudication.
So, even though we don’t have precedence yet, we nevertheless have some sense from both the Supreme Court and the Ninth Circuit that, I think, the burden is really on the plaintiffs to make the case even though they are the appellees in this particular context.
Prof. James R. May: Yeah. And if I could just weigh in about some of the positions that the plaintiffs were making in response to those government positions even before the oral arguments. So just boil it down to just a few things. The first is that the plaintiffs argue that the district court properly held that it had jurisdiction to hear the plaintiffs’ constitutional claims under the Due Process Clause, and they did so for three reasons. And these were touched upon, and what Damien just mentioned. And it goes without saying, and anyone who’s listening to this already knows this, but some of these are on the -- pushing the frontiers of law. Not just to mention constitutional law and common law but really the role of the rule of law and whether there’s a role for law, in general, and for courts in addressing, arguably, the biggest issue facing humanity.
So the first reason that the plaintiffs argued that the Due Process Clause is satisfied is that they had alleged and provided sufficient evidence injuring fact that’s fairly traceable to the government’s conduct. That can only be redressed by the court. So the Trump administration was arguing that precedent from Massachusetts v. EPA, and otherwise, and the Bellon case out of the Ninth Circuit, for example, that the plaintiffs did not have sufficient injury in fact. Because, in essence, it’s a generalized grievance, and climate change is diffused and felt by millions if not billions of people, and so the plaintiffs could not satisfy the burden of demonstrating sufficient individualized injury in fact. And they also could not enjoy the special solicitude that states enjoyed in Massachusetts v. EPA, in essence satisfying standing notwithstanding that diffuse kind of injury.
Secondly, the government argued that—as Damien just mentioned—really that the case isn’t justiciable, that courts ought not enter this thicket. This should be left to the political branches if not to diplomatic relationships—so with other countries—because it involves sovereignty and a whole bunch of other things, and there’s an international treaty that addresses it. So just courts should just butt out. But the plaintiffs argued that, in a sense, that was a political position and that there wasn’t any textually demonstrable assignment of these kinds of questions to the Executive Branch or to Congress, and so it’s not a traditional political question – the Baker v. Carr sense.
So the government turned to an alternate argument as to why it’s not justiciable, and, like what Damien mentioned, the government argued that because these kinds of claims, under the Due Process Clause, would not have been recognized, even pre-constitutionally, even before the U.S. Constitution was ratified or even negotiated, that it shouldn’t be recognized now. And, as Damien just mentioned, that the government was saying that if we look back hundreds of years at the kinds of claims at the courts of Westminster, in London, were recognizing that this would’ve been a kind of claim that was completely foreign to them, and so, therefore, courts in the United States in 2019 shouldn’t have authority to hear them either.
The next argument that the plaintiffs were addressing that was being made by the government was that the government claimed that these kinds of claims—and really any kind of claim brought against the government, even constitutional claims—must first be brought to the agency and must be challenged under the Administrative Procedure Act and consists of the scope of review provision of the Administrative Procedure Act of Section 706. And so the government was arguing that because the plaintiffs did not initially pursue any of these claims under the APA, and still haven’t, that the court is, in essence, prohibited from addressing them, that the plaintiffs have to exhaust their remedies administratively and judicially, before the agency, before they can get into federal court, even with constitutional claims.
And then there’s the constitutional claim. So, as I mentioned earlier, the plaintiffs argued that the Due Process Clause can accommodate an argument that there’s a fundamental right to a stable climate with these two prongs. The first being that a stable climate is deeply rooted in American history and jurisprudence, that, in essence, without a stable climate, we wouldn’t have a republic. We wouldn’t have had a Constitution, and that the government wasn’t in the business of disrupting the climate. So it’s deeply rooted in that way.
And also that going back to the Magna Carta, that the Magna Carta recognizes the obligation of those who are governing to protect natural resources and citing of a force principles codicil to the Magna Carta in support of that. And they also argue that a stable climate is essential to ordered liberty, a long line of Supreme Court cases, that they’re a notion of -- being essential to ordered liberty doesn’t mean freedom from restraint. It conjures up the idea that the government is supposed to provide means for participation and access to information and protection along the lines of liberty.
And then, lastly, the plaintiffs argue that even if you don’t have those other two, that I just mentioned, even if a right to a stable climate isn’t essential to ordered liberty and the right to a stable climate isn’t deeply rooted in the American jurisprudence, that the Due Process Clause of the Constitution should be interpreted as a rational continuum. This the dissent from, for example, Poe v. Ullman in that it’s a living Constitution, and drawing from language from Justice Kennedy from the Obergefell decision that courts can exercise reason judgement to find new applications for the Due Process Clause. Anyway, that’s a recap or summary of the plaintiffs’ responses to the government’s argument that Damien, so well, chronicled. Thank you.
Prof. Jonathan H. Adler: Professor May, how did the Ninth Circuit receive these arguments? What, in particular, stood out to you in the oral argument, which admittedly covered a lot of ground and raised a lot of issues. What stood out to you in the oral argument in terms of what the court seemed to be focusing on?
Prof. James R. May: Talking about any kind of prognosticating about, really, what was on the court’s mind is fool’s gold. So that goes without saying. But saying that, I think, the court spent too much time spinning its wheels for all of the argument. It didn’t engage, I think, for example, the due process arguments nearly as much as I thought it might. And, of course, I’m very curious to hear what Damien has to say about this as well. I don’t know whether he agrees or not. But, really, the bottom line one, is whether the plaintiffs have standing. Bottom line two, is if they do, is there a cognizable constitutional claim? And the court started by focusing on the standard of review, which is, of course, super important—especially, the judges. What’s the standard of review the courts should apply? And there was some disagreement about what that ought to be, but the court bat a good three minutes just on that kind of question and educating the litigants about standards of review. And so I just thought that that was time that could’ve been better spent on other things.
The standing argument, however, was engaged more fully on the one hand, but on the other hand, there was a lot of discussion about whether the extent to which Massachusetts v. EPA applies and not specifically about the injuries absorbed and faced by the kids who brought the case. Cases have litigants. The litigants here are kids. And those kids, the plaintiffs, argue were injured by the government’s actions and failures to act. So, at least, for me -- again, I’m curious to hear what Damien has to say too, if it hit him the same way. But I expected more there about the injury in fact rather than in the weeds of special solicitude and whatnot but more about “Hey, what are the actual injuries?”
And then, on the due process side of it, there was very little discussion of the Due Process Clause at all. Yes, it was mentioned in passing, but it wasn’t the kind of engagement with the Due Process Clause that one might expect in a Con Law One class in law school. There wasn’t a deconstruction of how it might apply in new circumstances or whether it implied here, and for that matter, whether it mattered whether the courts of Westminster would’ve recognized a similar claim. So, in sum, I think that there was a bit of time spent spinning wheels; maybe, insufficient engagement of at least one of the principle issues in the case.
Prof. Jonathan H. Adler: Turning to Mr. Schiff. So the Ninth Circuit spent a lot of time talking about some of these threshold jurisdictional questions and standard of review. Is that also what you took away from the argument and was this the court spinning its wheels, or are there other things we should take away from the court’s focus on these questions?
Damien M. Schiff: I certainly wouldn’t disagree with any of Professor May’s characterizations, although, I think it is important to give a little context as to the panel. You had Judge Hurwitz and Judge Murguia from the Ninth Circuit, and then Judge Staton from the Central District of California, sitting by designation, all appointed by President Obama. And I think you could all fairly say tilted to the left of center, although, not all to the same extent. So, I think you could say, going into it, the government, maybe, had the harder time and the plaintiffs had the easier time, and yet I certainly got the impression that there was some degree of sympathy on the court with the underlying project, so to speak, of the plaintiffs here, but, nevertheless, the realization that it’s just not going to work.
And I think you saw that in some of the questions, for example, that Judge Hurwitz, who was I think the most active of the three and perhaps, maybe, the most acerbic in his questions. Some of his questions to the government, which were very strange, almost as if he was acknowledging “Yeah. This is not going to work, but what if X, Y, or Z were done, could it then work?” So he asked, for example, about whether if congress enacted a due process right to the stable climate act and created a statutory cause of action, would there, then, be standing? And the government attorney -- I will say, that the government side was argued by the assistant attorney general, Jeff Clark—so, definitely, the government taking out their top personnel for the argument. He even resisted that. But I think the point of the question was that Judge Hurwitz wanted to satisfy himself that “Well, maybe, this is not the end of the road for the entire project, so to speak, of what these plaintiffs are trying to establish, but nevertheless, it’s sort of an implication that this is not how it’s going to work out.”
Also, Judge Hurwitz had this hypothetical that “What if you had a Canadian gang who’s coming over to the United States and kidnapping American children, and the executive decided we’re not going to do anything, and the Congress said, ‘We’re not gonna legislate,’ would there, then, be no remedy?” And, even on that, the government was not willing to commit. But I think what he was trying to establish, Judge Hurwitz, was that there may be instances where the judiciary can do something, but even he seemed reluctant to do it here.
And for the other members of the panel, who didn’t ask as many questions, I think there was a similar dynamic. At one point, Judge Staton said that even she had some concern about satisfying the redressability prong of standing just by issuing a declaration that affirm these rights without requiring the government to do anything. The plaintiffs were saying that that would satisfy a psychic injury, remedy that psychic injury, and even she seemed to be reluctant to go that far.
But I do have some sympathy with not only how the plaintiffs have argued the case—I certainly respect their excellent litigation work on the case—but I also think that, maybe, the government could’ve done a little bit better. Frankly, when it comes to substantive due process, it is hard to say, “Well, why not this right rather than another right?” Because, in my view, at least, the Supreme Court has not been particularly good at identifying “Well, what are the criteria that we’re going to use to determine whether to recognize a new right under the Due Process Clause?” And it doesn’t seem implausible that if, basically, one would have already been recognized as fundamental rights, but why not the right to, basically, a climate system that allows life to exist and all the rights to proceed?
So arguing just on Obergefell or any of the significant recent due process cases—arguing back and forth on that is not really very helpful to the government. And I think the same thing with the APA and other judicial review arguments saying that “Well, you really should’ve litigated these cases through the special statutory review prongs,” that’s really an argument I think that a court would cite once it’s already reached the conclusion that it wants. And then, it can, in a footnote, demonstrate how this is consistent with these other statutory review prongs. But it doesn’t seem to be an argument that frankly would convince someone otherwise not sympathetic to rule your way.
And so I think the government’s best opportunity was on standing, and I think it made a strong argument on standing. But, even there, I feel like the government could’ve articulated it a little bit differently. Because this emphasis on Westminster does give the case a peculiar antique feel. And I think, frankly, that the strongest rhetorical point of the whole argument was when plaintiffs’ counsel, in her concluding remarks, said that “Well, at the courts of Westminster, women and people of color couldn’t litigate their claims, so why are we focusing so much on that?” And I thought that was a very strong rhetorical point. And, therefore, I think the better approach for the government should’ve been to say, “We all know that basic constitutional law for standing, you don’t have citizen standing. You don’t have taxpayer standing. You don’t have the basic type of injury that everyone shares that allows you to get into court. You need something more than that.”
But, here, although, as I mentioned before, the particular injuries that the plaintiffs’ children may have are, by definition, unique to them, every single person, otherwise, in the country is going to have some type of climate-related injury. And so, effectively, it’s another presentation of what I would say would be citizen standing, or even more broadly than citizen standing, given that it’s a case litigated under the Due Process Clause, and that’s not just limited to citizens.
So I think focusing it that way, rather than getting down into the weed of analogizing or distinguishing particular cases on either substantive due process or on standing would’ve been more successful. But I think, ultimately, my take away from the argument was, here is a court that recognizes that this is probably not going to be viable but sympathetic, nevertheless, with what the plaintiffs are trying to achieve and perhaps suggesting an opinion in different ways whereby, in a new case, the same issues could be litigated and perhaps litigated more effectively.
Prof. Jonathan H. Adler: Okay. Thank you for that. Professor May, one issue that the government raised and stressed and that it seemed to be of interest to the judges on the panel was this question of remedy, and what is it that a district court or judiciary generally could order in such a case, and whether it’s appropriate for courts to order particular remedial steps in a case like this. What did you take from the focus on remedial questions in the oral argument?
Prof. James R. May: Yeah. There was quite a bit more time discussing that than there was some of the legal claims, certainly, and so that suggested that’s where the courts -- or at least one of the judges, in particular, Judge Hurwitz. But Judge Staton also asked the question about this, is like, “Okay. So if we agree with you, if there is a constitutional claim, if there’s a common-law claim, and if they’re both legally cognizable, and other claims are legally cognizable, and the case goes back to district court, and there’s discovery, and you win, what does the court do? What’s the remedy? Which, of course, affects a host of issues and, principally, standing. What can the court do about it?”
And here is where I thought that the plaintiffs’ litigation team, led by Julia Olson, just did a terrific job in just trying to explain to the court why the case was filed and what they had in mind four years ago, in September of , bringing a pioneering case that no one else had ever brought, making up all of this—and I mean that in a positivist legal way—and making all of this up as they went along, and then coming up with a complaint that listed what they wanted the government to do. And the first thing they asked was for declaratory relief—that there was a constitutional violation. Because declaratory relief for constitutional claims is consequential because that can lead to other kinds of governmental action, including legislative reform and a whole host of things. So that’s the very first thing that the plaintiffs asked is for the courts to declare that the government has violated fundamental rights under the Constitution.
And then the plaintiffs were, however, more specific in the oral argument. They wanted the court to declare that the Energy Policy Act, and a particular provision of it, is unconstitutional—a provision that allows for continued development of fossil fuels in a certain way. They want the court to declare that certain department of energy policies, such as granting long-term contracts for projects in Oregon, for LNG exports, are also unconstitutional, and they ask ultimately -- and this is where all this leads to. They asked for the court to order the federal government to prepare a consumption-based inventory of U.S. CO2 emissions. And so that’s a very specific thing, and it’s also something that’s a part of the requirement of the United Nations framework on climate change. It’s done by other countries. And the federal government already has means to do that, but just isn’t doing it in a way that is a consumption-based inventory of CO2. So the plaintiffs were asking for that very specific remedy to be coordinated between various federal agencies that have listed their complaint and for the court to hold them accountable for that remedy.
Prof. Jonathan H. Adler: And turning back to Mr. Schiff. What did you make of this focus on remedy? Are there remedies that a district court could appropriately order if we assumed that the plaintiffs suffered an injury and were stating cognizable constitutional claims? Are there things that a district court could order that would be within the judicial power and appropriate in a case like this, and what should we make of the fact that, as both of you have pointed out, some of the judges seemed very interested in questions like remedy and seemed far less interested in the core substantive question about whether there is a constitutional right at issue in this case, and, if so, what precisely that constitutional right is?
Damien M. Schiff: Well, I think that the focus on remedy redressability may be part of the effort of the court to issue an opinion that may set forth—although, maybe, denying these particular claims—may set forth a blueprint for other types of litigation trying to remedy the same types of harms. Now, I thought one of the more interesting parts of the argument was this back and forth on redressability, with the government saying that it would be improper for federal court to take such significant oversight over the Executive Branch’s implementation of very significant policy issues. And then you have plaintiffs saying, “Well, how is that different from any of the school desegregation or prison reform cases where you have a very significant oversight being provided by a federal district court?” And, Judge Hurwitz, that prompted him to make a comment about how basically it’s the question “Do you prefer federalism over separation of powers?”
And I don’t think either side was able to win the day on that rhetorically, but I do think that, on remedy, it’s not inconceivable that a trial of federal district court could do something like that. In fact, it has done things like that with respect to state government. Then, again, the question is, is the separation of powers more significant than federalism? I will say, at one point, it didn’t come up in the argument but was certainly argued strongly in the briefing is on the question of redressability, that if all of the harms that the plaintiffs are based upon are climate change, then, presumably, you have to assert that the government has a certain degree of control over a certain amount of greenhouse gas emissions, that it would have an impact on climate change. Otherwise, regardless of what you order the federal government to do, you may not have any impact. Especially, if other countries are in fact increasing their emissions.
Now, I think there’s a very important point that’s a point that the Ninth Circuit, in other cases, has highlighted as a reason for why greenhouse gas plaintiffs tend to have a hard time on standing that didn’t come up at the argument. But I do think that -- I wouldn’t be surprised, in a written opinion, to see that, because I do think that is related to a causation problem that would be a significant obstacle.
But, bottom line, I think the court is, to some extent, sympathetic with the arguments being advanced by the plaintiffs, and perhaps, the discussion about remedy might be again part of the courts effort to show that, well, maybe, not this case, but there could be other cases, perhaps, less ambitious cases, that the court’s maybe willing to entertain.
Prof. Jonathan H. Adler: This case is certainly the most prominent climate change court case going on right now, but it’s not the only one, and a lot of commentators have noted and, in some cases, expressed concern that depending on what happens in this case, that could have a major affect on other climate change litigation. Professor May, I’m wondering if you have thoughts on how these claims are handled in the Ninth Circuit or, perhaps, even by the Supreme Court could affect other climate change cases and future claims brought by climate change litigants. When this opinion comes out, what should we be looking for in terms of trying to understand how this case could affect other climate change cases?
Prof. James R. May: Yeah. And this just goes to show just the novelty of the case, and because we don’t know, right? There are so many ways that the court could go, and there’s so many ways that the court could damage, at least in my view, long standing precedent and protocol for constitutional common-law claims. So just, maybe, five examples—and I think these are unlikely, so I want to make that clear at the beginning—I think it’s unlikely that it will turn out this way, but I just wonder. It’s possible that there are certain outcomes that could adversely affect climate litigation all around the country.
For example, the government argues, as we talked about before, that no one can bring a constitutional claim against the government unless they brought it under the Administrative Procedure Act. So it’s Administrative Procedure Act which addresses agencies. So any claim against an agency, that’s constitutional in nature, has to be brought into that. And so litigants can’t just bring a constitutional claim notwithstanding what’s in the Constitution. There is no private cause of action in the Constitution to directly sue the government outside of an act of Congress, like the APA, that can be amended at any time. So, if the court were sympathetic to that—and I didn’t see or hear anything in the argument that suggested that it is, but it is a principle argument the government makes in this case—that wouldn’t be good, not just for climate litigants but for anyone who’s trying to hold governmental agencies accountable under law, including those who are pro-development, I might add. So that’s just one.
The second is about turning the clock back on the Due Process Clause to the courts of Westminster. And so, whenever I explain that, it’s sort of sounds absurd, and so somebody who’s listening might think, “Well, that’s absurd. Nobody really made that argument." But the government does and did. And not just made it but made it a central feature of their argument in this case right now, in 2019, that the Due Process Clause is limited to how courts in England—in England 400 years ago—might’ve thought of fundamental rights.
And, as Julia Olson pointed out and as Damien just reminded us, she said, “Look, if that were the case, it would turn back the clock on all fundamental rights, and she wouldn’t be in the courtroom because she couldn’t have had a law license, and slavery would still be constitutional,” and so on and so forth, because it was at the time at the courts of Westminster in England. So, if the court were to find any traction there, I don’t see how that does much good for constitutional law or for litigating constitutional claims. And I think it’s a super curious defense that the government made. It’s just the type that jumps off the page.
The next is under, of course, substantive due process. So the court could read substantive due process analysis very narrowly to require even more fingerprints, if you will, of long traditions and certain kinds of practices, which would again freeze, in time, practices that were in place in a very different world where socioeconomic and culture rights, in particular, weren’t recognized at all. So the government argues that, really, we’re stuck with original intent. Even the cases where the court has recognized fundamental rights in the reproductive rights context, or intimacy, or same sex marriage, and so on, that, really, those are aberrations. And Jeff Clark was arguing with the Ninth Circuit about those cases, and Judge Hurwitz said, “Well, there are a lot of dissenting opinions that I like. Can I cite to those?” But the government is making a very strong case that there really isn’t substantive due process, and so I think that has potential, although, unlikely, to upset protections regardless of where you are in the political spectrum.
The next is about the Equal Protection Clause—which I think is interesting and left on the table in the oral argument—with the government arguing that the kids are not a suspect or a quasi-suspect class. So, really, the government can treat kids as objects and not as subjects, that kids don’t have rights, and that courts don’t need to take a hard look at government action that affects kids, even if it’s deliberate, even if discovery, for example, in this case, would show a reckless disregard for future generations. And I’m not saying that’s the case, but even under those circumstances, the government’s position just doesn’t matter. Kids are not a suspect class or a quasi-suspect class, which makes it -- that’s a uniquely American outcome.
And then, lastly, is about the common law. Another potential outcome that could portend poorly for climate change litigation, in particular, is the role of the common law. Whether there’s federal common law to begin with, the court could—the Ninth Circuit or ultimately the Supreme Court—could say, “Once and for all, there isn’t federal common law,” and that would take away the public trust doctrine. Or it could say there is, but it doesn’t include the public trust doctrine. And so those cases that are based upon the public trust doctrine would fall, and then that turns to -- state common-law claims, as well, could be adversely affected by pronouncement by the Supreme Court that all forms of regulation concerning climate change, even in the age of rollbacks, like today, displace any kind of common-law action at the state level.
So, again, that’s a parade of horribles. I think it’s unlikely that the court will reach those. I think it’s more likely that the court, as Damien mentioned, will focus on remedy and will focus on whether the court can fashion sufficient remedial relief under the third prong of standing analysis in Article III. And I think that’s -- if I had to guess. I don’t know, of course. But that would be, I think, at the top of the list of how this case might turn out, to have a soft landing for litigants. But, ultimately, the court might be interested in allowing the plaintiffs to go forward with discovery to find out what they can about what can be done to address remedy.
One way to find out what can be done is to oppose those who know the most about what has been done and what’s been considered. And, the plaintiffs here, I think, it’s important to point out and remember this case is four years old, and it’s been through all of these twists and turns, and the plaintiffs haven’t been able to do any discovery. So that discovery could advance some of these claims and answer some of these questions about things like remedy. So I think that’s a possible outcome as well.
Prof. Jonathan H. Adler: Mr. Schiff, I’m wondering if you have thoughts about both how this case might affect other climate litigation, but also, are there particular dispositions of this case that are likely to attract or, I guess, reattract the attention of the Supreme Court? Because, as you both already noted, this case did attract the attention of the Supreme Court before and delivered a not-particularly-subtle message to the lower courts about their handling of some of the procedural aspect earlier. Are there particular outcomes that you think would be very likely to trigger Supreme Court review and others that would not?
Damien M. Schiff: I think if I were on the plaintiffs’ side or generally supporting their efforts, I would probably be rooting for a judgement of dismissal in this case. Because I think that if the Ninth Circuit panel were to find standing, that would undoubtedly invite Supreme Court review. Mass. v. EPA came up during the argument, and Judge Hurwitz, I thought, had a very curious approach to that case, in response to the government’s argument, that in Massachusetts v. EPA, it’s true that the Supreme Court allowed states to bring causative action based upon global climate-change-related harms. But he said, “We don’t have states here. We don’t have that special solicitude.” And Judge Hurwitz said, “Well, but Mass. v. EPA doesn’t say that there’s no other basis for standing in these cases. It just simply affirms standing in that case.”
And so that, I thought, was curious because I think most people would say, “Well, pretty much, Mass. v. EPA is the outer limit of standing. It’s not just simply an affirmative standing without any other consequence.” And I’m quite sure that if the Supreme Court were to address Mass. v. EPA now, say on review from this case, I think you might find a significant narrowing of the conditions under which any party can bring a global climate-change-related lawsuit.
If you recall in Mass. v. EPA was 5-4 with a very vigorous dissent on standing. In American Electric Power case a few years later, the Supreme Court split 4-4 on the standing question, and I think, if anything, the Supreme Court since those cases has become more conservative on standing. And I would think that the environmental community and those who are supporting the plaintiffs would be reluctant to have the Ninth Circuit affirm standing here because that would really invite a Supreme Court review and, I would think, a narrowing of the conditions under which these cases can be brought.
I agree also with Professor May on the question of the public trust doctrine. This was the second major substantive claim raised in this case that really didn’t come up at all during the oral argument. But I think if the Supreme Court were to address, it would have very negative impacts to those who support the plaintiffs. Because I could very easily see the Supreme Court saying definitively, even if you -- it hasn’t already said so definitely, that there is no federal public trust doctrine, that it is essentially a state law creation, that it’s also, by the way, traditionally, just about water, so expansions to the air are probably unjustified. And, in any event, federal law has displaced it.
And that last finding, frankly, could be particularly pernicious for those who support the ongoing efforts of states and local governments to use state tort law in state courts to sue energy producers on theories of a public and private nuisance and failure to warn for global-climate-related injuries. And those cases, frankly, will either stand or fall on the questions of preemption under the clean air act and other federal laws. So, to the extent that the Supreme Court has an opportunity to talk about how expansive that federal regulatory structure is, that will also have a negative impact on the ability of these cases to go forward.
But last point I wanted to make in response to -- two quick points, I should say, in response to Professor May’s comments about the APA argument, in this case, and narrowing statutory review, I fully share his concerns about that because the government was not being entirely forthcoming and saying, “Hey, you just need to go through these channels, and then you can litigate your case.” Because we all know that under the Administrative Procedure Act or special statutory review provisions, not only are there short statute limitations but there are significant limitations on evidence and on the extent to which one can go outside of a formal administrative record, the extent to which one can seek discovery. And Professor May’s absolutely right that those limitations can hurt everyone, not just those who have a particular view on climate change or a particular view on the Due Process Clause. They can hurt everyone who wants to vindicate his or her rights in federal court.
So that is a disturbing effort in this case, and I don’t think the Ninth Circuit will buy that. On the question of Westminster, again, I think perhaps the government wasn’t quite arguing that we should go back to how rights were conceived in 17th or 18th century, even when I took the government’s argument to be a little more limited, that what is the type of case -- regardless of the content of the rights that might’ve been advocated in the case, what is the type of case that the courts in England would’ve entertained. And is this effort to grandly restructure federal energy policy, is that the type of case that the courts in England would’ve entertained, regardless of the particular rights that would get you to that result.
And the government, I think, says, “No. As historical matter, it’s not.” Now, we can go back and forth on whether that should bind us today. But I don’t quite read the government as saying that the developments in due process that have happened, since the founding, in particular, substantive due process in the 20th century and 21st century, that those should also be aggregated but more, almost, like a originalist federal procedure attitude towards the types of cases that courts can adjudicate under Article III.
Prof. Jonathan H. Adler: All righty. We have, I think, a little bit of time for questions, if there are folks with questions. Wes?
Caller 1: Just a pair of related questions about remedy. Could the federal court tell Congress to legislate in a certain way? And, second, having practiced in Alabama for a while, I’m used to having federal courts take control over certain state agencies to remedy constitutional problems. Could the court grab more than one federal agency as in EPA to the extent appropriate DOD, Department of Energy, and Department of Justice as part of a remedy scheme?
Prof. James R. May: Damien, would you like to give that a shot?
Damien M. Schiff: Sure. I think that on the first question, can Congress be forced to legislate. I don’t believe that that -- I certainly would say that that would not be constitutional. But I will say that I don’t even take the plaintiffs, at least at this point in the case, to be arguing for that. I believe counsel for the plaintiffs, during the argument, made clear that they’re only asking for an order directing the executive departments to use their existing authority in a way that will ameliorate climate change.
On the second question of to what extent could a federal court regulate or oversee the operations of a federal agency, as courts have done, with respect to state agencies; in theory, I think that’s certainly more plausible. But, again, I suspect the plaintiffs would hedge and say, “Well, we’re not really asking for the court to manage the agency. What we’re saying is that the court should issue broad goals and then leave it to the agency’s discretion, within their existing statutorily granted authorities, to achieve those goals.
Prof. James R. May: Yeah. And, just for whatever it’s worth, I agree with that. Going in reverse order, this is where Brown v. Board of Education made an appearance early in the oral argument and then several thereafter. We had this two-step approach toward addressing these really complicated, complex issues regarding separation of powers, and the role of the judiciary, and so on, which is this: the first is to determine whether there are constitutional violations or, in this case, constitutional and federal common-law violation. So that’s the object.
And then, in stage two, like with Brown v. Board of Education, it’s about remedy. It’s about desegregating, of course. In that case, with all deliberate speed and what I heard from plaintiffs’ counsel is that they were thinking that there would be those two stages that federal courts could use here. I don’t interpret the plaintiffs’ case as ordering or seeking an order for -- I think it would come from the district court, ultimately, to specify exactly what legislation should be drafted. The federal courts can certainly strike down legislations that are unconstitutional. But to order a specific kind of legislative remedy is beyond authority in the U.S. It is authority that’s exercised not only at the state level, in the United States, but in other countries. Courts have that kind of authority but not at the federal level here.
And then, secondly, about getting additional agencies involved; I think it’s a terrific question because, look -- I think, maybe that’s at the bottom of the question that’s asked is it’s -- we’re all in in. Most federal agencies contribute to production of greenhouse gases either directly or through licensing or funding, and is there a way to make kind of an uber remedy to fix that. Again, I agree with Damien, that’s not what I think the court would grant. It’s not what the plaintiffs are seeking, and that’s ultimately something that Congress could require, is that kind of an approach.
Wesley Hodges: Thank you so much, caller. Here is an audience caller. This is likely our last question for the day. Audience caller, you are up.
Caller 2: Thank you, gentleman. Very instructive conference call. My question is in the context of the issue of federal standing. Would there be federal standing, in a case, where citizen taxpayers brought a federal action for violation of their Fifth Amendment rights for their property being taken where money or services are provided to undocumented immigrants in the United States?
Prof. James R. May: There is an immediacy to that question because, as an argument, that’s constitutionally something that’s challengeable. But, on the standing side of it, how I hear your question, and just to generalize it, is that the principle cases from the U.S. Supreme Court that have not granted standing in generalized grievance cases involved taxpayer standing—the ability of taxpayers to challenge general policies or even the tax code. Not, specifically, for themselves but challenging general polices. Of course, those are generalized grievances that, in general, do not convert a standing.
Damien M. Schiff: I was just gonna say -- and I would certainly agree with that, and I would say that, at least, in my view, I think there is a fairly strong analogy between objecting to government activity based upon injury as its citizen or as a taxpayer and the type of injury that’s being offered in the Juliana cases. And I think, ultimately, if those cases lose, I think it’s most likely that they will lose on that basis.
Prof. James R. May: Yeah. I think it’s an analogous as well. I get that point. I think it’s a good point. On the other hand, the analogy has limitations. Because, as opposed to the generalized grievance situations, here we have 21 kids who have provided affidavits that detail all the ways that climate change affect them: their health, their longevity, their opportunity for gainful employment, for love, for living life, for food, shelter, and a whole variety of things.
Ultimately, the policies that are an issue in this case, if corrected, if you will, will have a measurable and not insignificant effect on improving the human condition for generations to come. And so the analogy, I think, is -- intellectually, I see it now. But I think, emotionally, this is, maybe, where we can finish where we ended, is why the court is sympathetic to the plaintiffs’ claims. Because, if the U.S. Constitution—and first the Constitution in modern times—has no place in addressing the biggest challenge to modern times, then, ultimately, I suppose the question is, what good is it?
Wesley Hodges: Well, very good. Audience caller, thank you so much for your question. Gentleman, it looks like we are out of time. It is the top of the hour 2:00 p.m. Eastern. Professor Adler, I turn the mic back to you to see if you have any closing thoughts or solicit any thoughts from the panel.
Prof. Jonathan H. Adler: Yeah. I don’t know if either our panelists have any closing thoughts. And, certainly, I would just say that that this is certainly an important case as I think both of our panelists have noted. It raises some very large questions, not merely about climate change and environmental law but about constitutional law and the role of our courts in the federal system. Professor May and Mr. Schiff, do either of you want to offer any closing thoughts?
Damien M. Schiff: I agree with that assessment and very much appreciate the opportunity today to talk about the case.
Prof. James R. May: Likewise. I appreciate it as well and look forward to reading the petitions for rehearing en banc, however this turns out.
Damien M. Schiff: Yeah. [Laughter]
Wesley Hodges: Excellent. Well, we are very appreciative as well. On behalf of The Federalist Society, I would like to thank each of you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you all for joining us for the call. We are now adjourned.
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