Juliana v. United States: The Constitutional Implications of Climate Change
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Juliana v. United States: The Constitutional Implications of Climate Change

October 9, 2019

People trickle in
with their lunches. So my name is Molly Bruce. And I’m the president of the
Environmental Law Society here at Duke. Cosponsoring this
event today, I just have to give a
shout out and much thanks to Duke’s Environmental
Law and Policy Clinic, specifically Ryke
and Michelle, yes. And Duke’s Chapter of
the Federalist Society, and Michael Wajda,
wherever he is. As well as Duke’s Chapter of the
American Constitution Society, and Isaak Earnhardt. If everyone could
also make sure when we’re done to not leave your
trash underneath your seat, that would be wonderful. I would also like to
thank our panelists today. We have Professor Jedediah
Purdy of the Law School, as well as Professor
Ernest Young. And they’re going to be speaking
about the different nuances of the Juliana v.
United States coming out of the Ninth Circuit. So in 2015, a group
of youth plaintiffs sued the government, not
under any particular statute, but based on the claim
that the government’s affirmative actions that have
contributed to climate change are a constitutional violation
of the right to life, liberty, and property. And they also asserted under
the public trust doctrine that the government’s
required to maintain certain natural
resources for the benefit of future generations,
and that the atmosphere should be included in this
list of natural resources. And so today, we’re
going to unpack this case and talk about standing. We’re going to talk about
the merits of the case. And we’re also going to talk
about potential remedies. And also, before we
really get going, I want to mention that the
Duke’s Environmental Law and Policy Clinic is
also carrying forward a climate change
based suit and is representing youth plaintiffs. So that’s kind of a cool
connection here right at Duke. And as we open up the
room for questions, if anybody wants to pose
questions to Professor Longest. He’s more than able to
speak to Duke’s case. And so, without further
ado, Professor Purdy, if you want to give
your take on the case before we proceed to
the moderated portion. Do you want to say a little
more about the claims and the procedural
posture of the case. The procedural posture
is quite complicated. You’re talking about
where we are right now? Just so that everyone
has the same– Maybe a week and a half
ago, the Supreme Court allowed this case to continue
and the Ninth Circuit. But on November 8th,
there was a temporary stay of the case in
the Ninth Circuit. And it looks like
it’ll proceed to trial. But it’s kind of
under much skepticism, is where we are at this point. So, hi everyone. I’ve been sort of
surprised at how divided my own feelings
have been about this case, from the beginning. In part, because a lot of
the research and writing I’ve done around environmental law
have centered on the argument that if you look across history
of American law, not only, but particularly, and
that’s what I know about, you’ll find that the
environmental statutes and institutions that we
tend to take for granted now, as normal law, became possible
only because at some point before they were
normal law, activists, and cultural
innovators, and others came up with radically new ways
of talking about, and relating to, and valuing the natural
world or parts of it, and made demands on political
and legal institutions that were initially
regarded as ridiculous, or at least implausible. And so in environmental
law, as in much else, like constitutional
law, the normal world that we live in
today was built out of the impossible and Utopian
demands of earlier episodes. So that predisposes me
in a very general way to like the idea of asking the
US government to do something that it’s entirely disinclined
to do through a novel set of constitutional
and common law claims. And yet, I’ve actually been
fairly skeptical of the Juliana case all along. And I think some
of that may just be the clash between the
role of a historian of law and the role of a lawyer
standing in the present and looking at what
people whose goals you’re sympathetic
to are, and saying, you know, that might not
work, that might backfire. The historian can see
what extraordinary things have had to be attempted in
order for anything to succeed. The lawyer, looking forward,
can see all the ways that a radical project in the
moment could fail or backfire. And both are actually
important intellectual and even professional roles. And this is a very bold case. The public trust
argument that holds that the federal government
has an obligation to preserve and caretake
that global atmosphere is a pretty dramatic
extension of, and arguably departure from, what
public trust doctrine has tended to do. It has tended to exist at
the level of the state, rather than of the
federal government. It has tended to be a
limit on the privatization of a historically sort of cabin
set of resources, especially coastal waters and
submerged lands. And so blowing it out into
a general prescription for environmental caretaking
is astonishing in the breadth and the boldness of the claim. The constitutional
claim to a due process right to an environmentally
sustainable future is also a claim of
extraordinary boldness and hard to carry forward,
from even the bolder directions of constitutional interpretation
of the last couple of decades. I’m inclined to say, and
we can talk more about how it departs from
the major lines of constitutional
interpretation and intervention that the federal courts
have been inclined to. So the main thing I
want to say about this, and I’ll wrap up in
a couple of minutes, and we can come back in
more detail to these themes, is that I think we have to
look at the Juliana case as political theater
on the one hand. I think what the
plaintiffs are trying to do is, to a
considerable extent, to use the courts as a
forum to try to change widely held attitudes about
what people are entitled to, like a right to a viable future,
about what the responsibility of a legitimate government
is, like caretaking a viable future. And from the point of view
of those, the substance, the content or the
goals of those demands, I’m completely in sympathy. I think everyone at the table
is completely in sympathy. Political theater of
this kind, and the move to the courts in
particular, I think, is especially
understandable right now. Because people are operating
with a fiercely felt sense of the gap between
what needs to happen to avoid a whole
series of accelerating catastrophic environmental
developments, and what is happening, which
is almost complete inaction. Even the Paris Accords
were totally inadequate, both in terms of
substance and in terms of enforcement mechanisms. And those have turned out,
from the US perspective, to be symbolic mostly for the
political theater of the Trump administration’s
repudiating them. So the feeling that there
must be some institution that we can call on to make
us better than ourselves, and make us do something
that we need to do, but are manifestly not doing,
is very understandable. Americans have often
turned to the courts in that circumstance. So it’s not surprising
that it’s happening again. I think, in fact,
history tends to suggest that courts don’t usually
force Americans to be better than themselves. And when courts have
been radically reformist and participated in
deep social changes, like during the Civil
Rights Movement, it’s been in conjunction with
the majoritarian political institutions, like Congress
and the presidency, more than it has
succeeded against them. So I think there’s a kind
of maximum tension right now between the kind of
theatrical charisma and the moral
admirablility of this goal, and its legal viability as a
creditable use of the courts. And I’m concerned about
where that’s going to go. It’s great to see you all here. Thanks for coming, and
thanks to the organizers for making it happen. Professor Young– I want to thank Molly
for roping me into this. Like most of the things
I get dragged into, I’ve learned a lot. I have a feeling
I’m kind of cast as the Grinch on this
panel, that I’m here to say this isn’t going to work. And, in fact, I’m here to say
that it’s not going to work. But I want you to understand
where I’m coming from, which might surprise you. I don’t know if it will or not. So I’m a conservative. And what that means is I
think change is basically bad. Climate change is change,
therefore I’m against it. And I say that not
just to be flip, although that’s a side benefit. But the conservative
worldview really is that the world is
fragile, and precious, and messing around with it
is inherently dangerous. And if we do mess
around with it, we have to be
very, very careful, because we just don’t know all
the bad things that can happen. And so while on the
one hand, I think a conservative has to be pretty
nervous about the sweeping new theories of constitutional
law that are being advocated in this case, much
more terrifying than that is the notion
of climate change itself. It’s going to change
all our assumptions about how the world
works in many, many ways. And so, I frankly,
do not see how you can be a real conservative
and not be really concerned about climate change, and
not be deeply in sympathy with the goals of a
lawsuit like this. And so I am. And if you still
don’t believe me, I will take you out
to the parking lot and I will show you
my plug-in hybrid that I paid way too much for. I’m serious about this. I would like to see a
massive change in government policy in this direction. I just don’t think this
lawsuit is going to get there. And the first
problem is standing. So I think there’s one– just to say at the
outset, I think there’s one quick
and relatively clean way in which this has to
be dismissed on standing. They have done a remarkable
job of pleading this case. So that the individual
plaintiffs don’t just allege that we are
subject to climate change, and climate change is going to
affect everyone in a bad way, in a really big way,
and that’s our injury. Because that would be
a generalized grievance under the law, and that
would not get you in. Instead they have people saying,
I was in a flood in Louisiana, and my house flooded. And as someone who was
actually in that flood too, because I was driving my kid
to college that week and got stuck in Lafayette, I can tell
you that was a hell of a flood. And allege that that was
caused by climate change. So there’s your
particular injury. And the fact that
a ton of people have similar stories
to tell doesn’t mean that it’s not a
particularized injury, as long as you were
injured in some way that was concrete to you. And so the district court’s
right about all of that. The problem is, is
that that’s over. That injury happened. We’re not seeking damages. If we were seeking
damages, we’d have standing to seek damages about that. And our case wouldn’t be
moot until we got paid. But they’re not asking for that. They’re asking for
injunctive relief. And so what’s
happened in the past is not going to be
considered relevant. The question is, are you
likely to be subjected to this in the future? And the risk that
these plaintiffs will be subjected to
these harms in the future are the same as the risks
that every one of us will be subjected to these
claims in the future. Those are generalized
grievances. And for that reason,
I don’t think they have standing to
seek injunctive relief. I think if the Ninth Circuit
wants to get rid of this case, they can say that and be
on pretty solid ground. But I think the case raises
some more difficult problems about standing and the
way we do standing. Because what makes it hard
to get rid of this case is that ordinarily we accept
the allegations of the complaint as true at the motion
to dismiss stage. And at summary
judgment stage, we have to go with the
plaintiff’s view as long as there’s a
reasonable dispute. And so these
allegations are detailed and they say the right things. And for the summary judgment,
evidence they have a lot of it. They have a lot of experts. And as long as they
have experts and there’s experts going the other way,
then this has to go to trial. And so you can’t get rid
of this simply by saying, I don’t think the causation
story on standing is true, or I don’t think the
redressability story is true, without really undermining
that principle that we’re not supposed to get rid of
things on standing grounds simply because we’re skeptical
of the claim on the merit of causation. You have a lot of cases
where causation is difficult. Any mass tort case, it’s
difficult to establish– did dropping the
dioxin in the water actually cause the
plaintiffs cancers. That’s a difficult
causation story. And you don’t– you might lose
on causation on the merits, but you don’t say you
don’t have standing simply because it’s hard to
establish causation. You take the
allegations as true. My concern is that
because this is such an ambitious, adventurous
extension of that principle, kind of to its logical
limits, when this case loses, and I promise you it
will lose on standing, I’m afraid we’re
going to undermine the basic principle that you
don’t dismiss on standing, because you are not willing
to believe the plaintiff’s story on the merits. I could see this being
a case, for instance, under Twombly and Iqbal,
which tightened up the federal pleading
standards, and saying these pleading standards
aren’t sufficiently– these pleadings aren’t
sufficiently detailed right in order to
pass a standing test. That would have the effect
of not only of getting rid of this case, but also
tightening up the rules and making it harder for
everybody else to sue. That, in fact, is
what already happened in the Iqbal case, which was
a fanciful case on the merits, under the Bivens
cause of action. There was no way that
those plaintiffs were going to successfully
sue the attorney general for these actions
on the war on terror. The only interesting question
was how they were going to lose and how bad. And, in fact, that
case ended up making very restrictive
pleading law that now affects every plaintiff
in an American court. And so the concern is
that when this case loses, that the courts will
tighten up the standing rules in ways that undermine
much more meritorious claims on the merits. The same thing is true with
concerns about redressability, that ordinarily your concerns
about the intrusiveness of the remedy are supposed to be
worked out at the remedy stage, after the merits have
been adjudicated, not at the standing stage. And yet, when remedies
are really extreme, when people ask the court
to take over the government, as they basically
have here, that tends to start infecting the
standing inquiry upfront. And you don’t want to
have too much of that. And so if you get an opinion
breathing those remedies concerns into the standing
redressability concern upfront, that’s also going to tighten the
rules for every other plaintiff and not just these plaintiffs. And I think that’s
a real concern. On the merits about the
substantive due process, here, I think, the district
court’s opinions are appalling. Because there’s no
recognition– they quote some very open-ended
language from Obergefell, about how we don’t
even know what rights we have, and we’re
always learning that we have new rights. But there’s no acknowledgment
that the history of substantive due process
is a very troubling history. And it’s a history that
ought to trouble progressives even more than it troubles
people on the right. And because that’s the history
of Lochner v. New York, or as I’ve instructed
my students, you always say
Lochner three times– Lochner, Lochner, Lochner. This idea that the
court should recognize broad rights of
environmental protection that aren’t in the text
of the Constitution, that’s going to mandate all
sorts of government action. I think that’s Lochner. I think that’s the court
formulating new rights out of whole cloth. Our experience with
that is not good. Maybe you could make an argument
about how this is different. The district court
hasn’t even acknowledged the troubling history
of this and the hill that they have to get
over, which is why– I mean, who knows what can
happen in the Ninth Circuit. It’s the Ninth Circuit. But if this claim on the merits
gets to the Supreme Court, there’s no way
it’s going to win. And again, the court
might say things that would be more restrictive
for more moderate claims. So the other problem
on the merits is that there’s no
cause of action. The plaintiffs have been,
I think, deliberately vague about what gives
them the right to sue. Ordinarily, you
would bring a case like this under the
Administrative Procedure Act or something like that. They’ve disavowed that. Ordinarily, when you have a
constitutional claim that’s brought against a federal
government officer, you do that under
the Bevin’s case, but that’s usually
only for damages. And it’s absolutely clear
that the Supreme Court is unwilling to extend
that to new areas. So they’ve been
left with not saying what the basis of the
cause of action is. But I don’t think
that’s a winning strategy in the long term. So maybe I should stop there. I’d be happy to talk– I think it’s useful
to compare this case to a case like Massachusetts
v. EPA, which was a much more successful effort to force the
government through litigation to think hard about
climate change. And maybe we can talk about
that a little as we go forward. Because I think that’s a
roadmap of how to do this right. Could I ask a very quick
follow-up about that decision? So in 2007, many of you know,
some of you will not know yet, there were four
votes for an opinion by Chief Justice
Roberts to the effect that climate change
is intrinsically incompatible with Article
III standing, that is for the federal courts
during the case at all. Because of the diffuse
and uncertain character of the relation, especially
between dispersed cause and harm. How likely do you think it is
that this will force or invite the court’s hand to put five
votes to that conclusion? I worry that it will. Massachusetts v. EPA is a
much more appealing case for several reasons. One is, Congress
had deliberately created a statutory
right to seek judicial review of the denial
of a petition for rulemaking. It accounted for a
lot with the court that Congress had
authorized people to bring suits like this. The states were
plaintiffs in that case. And one thing that’s so hard
about this kind of litigation is we don’t know who’s going
to be the most effective. And so we’re aggregating very
diffuse interests of thousands, and thousands, and
millions of people. And there’s various ways to do
that in the law, none of which are entirely
satisfactory in class actions, multi-district
litigation, other kinds of representative actions,
organizational standing. States are a pretty
good instrument for aggregating those diffuse
interests, because they have all sorts of internal checks
and balances that make sure that their power isn’t
going to be abused. And they were asking
for a clear remedy– just act on the
petition for review. They weren’t saying we
want an injunction to make the government phase
out fossil fuels. So I think it posed a lot lesser
separation of powers concerns. So it would be easy to
distinguish Massachusetts v. EPA. My fear is that the court
may not want to that bad. And if that is the
case, then this will be a vehicle
for doing that. On the other hand,
if they really wanted overall
Massachusetts v. EPA, they could do that in
a variety of cases. I don’t know how much
more likely that makes it. I’m skeptical that they’ll
overrule that case. I think they may make it
smaller by emphasizing some of the special
characteristics of that case. And that might be fine. You both have discussed
standing, particularly within the lens
of climate change. But I think that
climate change also complicates this divide
between ripeness and mootness. And so I’m hoping you could
talk a little bit more about how the court can deal
with ripeness and mootness given Juliana. So ripeness and
mootness, I think it’s best to understand them as
basically standing plus time. You have to have a
concrete injury in fact in order to be the
right plaintiff to sue. And you have to have it now. That’s what ripeness means. And it can’t go away. That’s what mootness means. That’s a little oversimplifying,
but not that much. And so I think
part of the problem is, if they were injured by
the effects of climate change at a discrete point, when their
bedroom flooded in Louisiana, they would have standing to
seek redress for that injury. But because it’s something
that happens in the past, that’s going to be moot. Now I think what
I would try to say if I were going the other
way, would be this is, it’s a basic mistake of
science and policy to view these, both the past threats
and the future threat, as unconnected. We should view this as all
part of a general episode, an ongoing set of harms. That the earth is
warming and that was just the beginning
to that party. And I think that very well may
be right in some general sense. But I think that also
puts a lot of pressure on the ability of courts to
deal with this sort of thing. In the beginning of the– when the government
moved to dismiss, it moved to dismiss on
political question grounds. And the district court said, no,
this isn’t a political question under the traditional
criterion in Baker v. Carr. And I think it was
absolutely right about that. But there’s a broader
sense in which there are political questions. And that is that some
problems are just not neatly susceptible to
judicial resolution because they’re so
amorphous, because they’re so large, because they implicate
so many different interests. And usually, the way
we know that they’re the sort of political
questions that have that form is because we can’t find
a plaintiff with standing, or we can’t fit it into
our traditional structure of ripeness and
moodiness, and all that. I think all of that
is a clue not that we need to change the ripeness
and mootness and standing rules to accommodate a case like this. But this is a case
that you probably ought to think of as a political
question in that broader sense. So I wonder whether I could
talk a little about the question of time and push
back against my own earlier contrarians
about the case. Because we’re so much
in harmony that I now have to disagree a
little bit with myself, more than with Professor Young. To my mind, one of
the best accounts of where the Supreme
Court should and shouldn’t involve itself in the use
of constitutional review to override or go outside the
democratic political process, is in those cases where
the interests that are centrally concerned are
foreseeably and persistently likely to be neglected
in the political process or subordinated. This account arose out
of the rationalization of the Civil Rights Era,
for obvious reasons. You have identifiable
subordinated minority populations. The political process by
itself isn’t adequately remedying the situation. The court can involve itself
and ensure that their rights get a more adequate airing. That that’s the sort of
optimal account of it. So future generations
are a perfect instance in some ways for this argument. Because they are
always asymmetrically positioned in relation to us. Anything we do on their behalf,
we will bear the cost of, but not be around to
have the benefit of. And they can’t put any pressure
on us to do anything about it. So one of a few things
needs to happen. One would be the development
of a more robust conservative ethic of the kind that
Edmund Burke, who– a favorite of
Professor Young’s– also my favorite
conservative, one of them– you’re another of them– said about how the generations
ought to regard one another, as in a kind of continuous
link of mutual obligation. That’s not the exact phrasing,
but that was the spirit of it. Another complementary
approach is that we need institutions
that are basically tasked with speaking for the
interests of future generations so we don’t neglect them. Given what we’ve
now got, the court seems the better of the
branches to ask to do that. And yet, there are
so many problems with trying actually to
get an answer out of them, both at the, as it were,
abstract level– what kind of problem this
is and how well it fits into what we think of as
the competence of the courts. And also from the point of
view of their pure capacity to make something stick. I think part of the
reason we’ll lose is that the justices, if
it gets to that point, won’t think it makes
sense or belongs. On some level, a part of
the reason it will lose is, that this kind
of thing, done up against the resistance of the
majoritarian institutions, would break the courts if
it were frequently done. I don’t disagree with
much of that at all. One thing I like about
Massachusetts v. EPA, obviously, as a
scholar of federalism, is that it emphasizes
the role of the states as plaintiffs in
cases like this. And I think the states
not only aggregate lots of people in the here
and now, but they are institutions that extend
way back into the future. The Commonwealth
of Massachusetts has been here from
the beginning. It’s been here longer than
the federal government has been here. And so its
institutions like that, that expect to be around
for a really long time, are pretty good institutions
to take the long view. And while they are
dominated by the voters of the present,
just empirically, we see states taking
the long view, and representing those very,
very long term interests. And to the extent
that we’re worried that this is getting into
too political and area, I think it helps that they
are political institutions. The Attorney General of
Massachusetts, Maura Healey, has to go back and face the
voters and get re-elected. And they will be judging her in
part on whether her litigation strategy, suing the
Trump administration 15 times in the first
year it was in office, whether that was a responsible
use of state resources and an appropriate thing to do. And so it doesn’t
worry me so much that we’re moving into
the political sphere, because we have
political actors that are politically accountable
playing that role in the judicial sphere. So I think that’s one thing. The other thing
I would say is, I do think that we
should rely more on courts to resolve some of
the issues that are dividing us. This is a fight I’ve had with
Walter Dellinger over the Texas immigration case,
when they sued, the challenge to the DACA policy
of the Obama administration. And the argument was made, well,
that’s just a political fight, you’re continuing
this in the courts. But the thing is, it
was a legal fight too. There were legal standards
that govern that question. And the alternative
is often to just have these really ugly
political fights, where, for instance, Congress
can’t get a statute it likes past the
president’s veto, and so it holds the
debt ceiling hostage or confirmations hostage. And each branch is using
their political weapons to fight these political fights. I’m not sure that’s
better for the republic than having a court
resolve at least the underlying legal issues. And I think in a lot
of places and a lot of issues, that can be done. I think this one is too big. And the remedy is too big. And it will break the
courts if they try. I think the clinic’s
version of this, to the extent that
I understand it, is the same version of Juliana. I think it’s the helpful version
of this sort of argument. So I think we ought to hear
a little more about that, not that I’m calling
on you or anything. That’s OK. I signed up for that gig when I
agreed to participate in this. So thank you very much. And you’re definitely one of my
favorite conservatives as well. Let me just go ahead and say
that I think that to the extent there’s similarity between what
we have worked for on behalf of Haley Turner, Emily Liu,
and Arya Pontula that’s similar with Juliana plaintiffs,
on behalf of the clinic, is basically one fundamental
question, which is, can the social contract
be sociopathic? And to the extent that it
is, do the courts have a role to play in correcting the
other branches of government in regard to their relative
inaction in relation to the scope of the problem? Now, in our case,
we are actually doing things, as the United
States would probably say, certainly right. That is, we are
particularly going with a specific regulatory
proposal to a state level agency to regulate sources of
emissions over which the state clearly has regulatory control. We’ve asked for a
carbon dioxide budget to be established by the
State of North Carolina. We recognize that North Carolina
as a state, carbon dioxide emissions have hopefully
already peaked. They certainly are heading
in the correct direction. The question is, will they
head in the correct direction quickly enough? And the other, more
important question is, will the incentives
and the changes that we see in the North
Carolina energy system be replicated globally? Will the other 50
states follow that lead? Will the other nations around
the world follow that lead? Will we all get to where
we need to get soon enough to avoid catastrophic result? And so we have presented that
petition, that single action, under our Administrative
Procedure Act. It was rejected by the North
Environmental Management Commission. And so students had been working
on that for several semesters to prepare that document. Now Marnishia Jernigan
in the front row here– raise your hand Marnishia,
if you don’t mind– is helping me prepare some
legal arguments there. And our primary legal
arguments are actually very specific tactical
type arguments related to the
Administrative Procedures Act of North Carolina. But behind all of that is
this fundamental question, is there a duty on the part
of the political branches that as hard as it is to tackle
climate change, to tackle it? And if they fail to
do so, at what point, and using what mechanism
can they be held to account? Certainly, Massachusetts
v. EPA suggests, and I certainly agree with
you, when that case came out, I thought, in many ways,
based on the parens patriae standing, that there was
a real possibility there for states to come forward
and take that role. I would say this, that I have
noticed that whatever court we find ourselves in, there
is an opposition that says we’re in the wrong court. So there’s an element
here of hide the pea. There’s this great scene
in Kung Fu Panda, one of my favorite things of all
time, when Po, the protagonist, is trying to flee the villainous
oppressor who is coming to take it away from him. And he’s got the dragon scroll. And he sees the way to get– his opponent is too strong. So the way to stop him is
to throw all these woks out, and then he puts the
dragon scroll under woks and plays like 20-card Monte
with all of these little woks going around. And that’s how it feels here. You go to the EMC,
and they say, well, we can’t do anything about that. That’s the US government,
you got to talk to them. We go to the US government. They say, well, we can’t
do think about that. Go to the APA and talk to
the individual decisions. And I think Judge Aiken
had one good answer to some of what was said here. And I want to say,
it’s not an answer, it’s a response to some of
the concerns that I’ve heard. One is, is that the APA is
kind of inappropriate here for the following reason. Plaintiffs do not contend that
any single agency action is causing their asserted
injuries, nor could they, given the complex
chain of causation involved in climate change. They seek review of aggregate
action by multiple agencies, something the APA’s judicial
review provisions do not address. The APA does not govern
plaintiffs claims. Then she goes on to point out
that the court acknowledges that the allocation of
power among the branches of government is a critical
consideration in this case. And reiterate that,
quote, “Should plaintiffs prevail on the merits,
the court would no doubt be compelled to
exercise great care to avoid separation of powers
problems in crafting a remedy.” I think those problems
that Professor Young was talking about are very present. And we do need to
think about those, whether they are strict
separation of powers, or maybe separation of
powers with an asterisk. Larger questions are there. They asked for a lot of
different claims for relief. In our case, we’re asking for
a much more circumscribed claim for relief. We’re just asking
to start rulemaking on this carbon budget rule. And then once that
rulemaking starts, the hope is that that
might lead to something. But we also recognize
that it’s highly likely that that might lead to
nothing, because we’ve had inaction, at least in
this particular branch, the Environmental
Management Commission, for all these years. So that’s a short
sort of segue way back in to talking about Juliana,
which is that at the state level, I think it is critically
important that those of us who have an opportunity do file
actions that are circumscribed, that are maybe not as creative
as the Juliana action, but that our aiming in the
portion of the bigger picture that we can control,
to try and make sure that we hold that social
contract to account. And that’s where the public
trust doctrine I think comes in, it’s just this notion
of, does the United States, or does any state government
hold that responsibility? As opposed to a discretionary
duty, is that a mandatory duty? And that was a really
interesting question we had earlier when
we first started. So one moral of the
story is that everyone who’s interested in
this sort of thing needs to take Federal
Courts, so that when Po puts the pea under
the woks, you’ll know which one to turn over. That’s right. I think you just implicated
a really interesting nuance of this case, because the
youth plaintiffs are asserting a claim under the
public trust doctrine, but typically the
public trust doctrine is deployed at the state level. And so I was hoping that
you could talk a little bit about the merits of using this
at the national level, given that climate change and CO2
emissions are inherently national or even international. So there hasn’t
generally been thought to be a doctrine obliging the
federal government to steward or conserve common
resources on behalf of the whole
population, which is the basic principle that the
public trust doctrine applies via the courts in a
variety of states, to, like I said, a specific
and historically bounded set of resources,
especially certain waters. There has been a
moment in US law when some people imagined that
the public trust doctrine might be blown up into an entirely
different kind of thing and become the basis of
environmental law generally. Environmental laws
as it now exists was basically invented
in the early 1970s. There was really no
such thing before that. And one of the first shots
across the bow in creating it was a very famous
argument by a law professor called Joe Sachs,
which essentially argued that the public trust
doctrine should be deployed by the courts at all levels
to require governments at all levels to take
care of all kinds of interdependent ecologically
sensitive resources on behalf of the
whole population. This, in 1969, emerged
from the flush of optimism about what courts could do
at this sort of tail end of the Civil Rights revolution. And it was preempted almost
immediately by Congress, passing a raft of
environmental statutes that basically created the
institutional framework of modern environmental
law, and passing those by enormous majorities. They look like
typographical mistakes when you look at the votes on
the major environmental laws– 300 something to three. So the reason I point to this
is, that this was a moment when the sense of crisis
around the first generation of environmental problems,
widespread pollution, habitat degradation, mass
extinction, was seen as presenting a real gap
between what needed to happen and what was going to happen. And people started
to look to the courts and looked to the courts
to act creatively. And then the political
branches stepped in. They took dramatic action. And the impetus to look
to the courts went away. We may be waiting a lot longer
for dramatic radical political action now. And if that’s true,
I think there’s going to continue to
be pressure to try to remake old doctrines and
familiar institutional norms to get more leverage out of
the courts on climate change. And so then the
question is going to become one of judgment about
what will work institutionally, and conceptually, and why. And so at that point, I
guess, the bottom line, I don’t think we need to
be confidently committed to what the old boundaries
of the public trust doctrine. And the public
trust doctrine can change, as common law doctrines
can change in dramatic ways. But I think we do need to
take very, very seriously the more specific
prudential judgments that we’ve both talked about,
but Professor Young especially has emphasized, about
what will actually make incremental progress
and what will risk bigger reforms of backfiring. I don’t want to– That’s fine. Let’s open up the
room for any questions if anybody would
like to pose any. Go ahead. Question for Mr.
Young, [INAUDIBLE] So that’s going to
affect a lot of people. And we probably don’t know
exactly which people in exactly what way yet. And that’s what makes it
a generalized grievance. That’s what makes it
not particularized as to particular people. Now I suppose if you could
find someone who the water was already lapping at the
foundation of the house, and you could say
that this has been– you would have to
establish that that was caused by climate
change and not by just some other
hydrological phenomenon. Then you can say it’s part
of an ongoing process. And I think that
would be the strongest case that you could make. The fact that it might
be thousands of people wouldn’t matter, because
it was particularly affecting your house. Just because a lot
of other people are also hurt in the
same way, your injury is particularized to you. So I think that that
would be the best– that’s the best case
scenario, I think. But I don’t know how well
they can make that case. Like Louisiana actually
brought in the flood plain map. We, in the whole state
have a flood problem. Yeah, that’s why it was
great for Massachusetts, because Massachusetts
had standing not only on behalf
of its citizens, but also as an owner
of public lands. They were able to say we’ve
got this thing called Cape Cod, and ain’t none of it very
high above sea water. And we really like it out there. And our maps are
going to look funny if it just all gets submerged. And we will
certainly be injured. But what’s great
about the state is it aggregates so many
interests that we know that it will be affected for sure. It becomes less probabilistic. So I think that’s helpful. First, I want to
thank you for such an interesting and thoughtful
discussion of this case. And to me, one of the
most interesting aspects is, what would happen
at the remedy stage? Even if the plaintiffs
were able to get past standing and
the other stages that you’ve been discussing,
what would they win? And it may be very
difficult for a court to order a national
remedial plan. I thought it was interesting
that Mike Longest talked about asking the state to do
specific things under, perhaps even under current
statutory authority. So that leads me to the
question not only of, in a legal or
formal matter, what could a federal court ordered
the US government to do? But also, back to the
litigation strategy, and the question of, is
this political theater? Or is the gap
between the charisma and the legal
practicality, or the gap between the moral claim,
the urgency of the issue, and what political
institutions are really doing, and what future
generations could get the future political
institutions to do, that could the plaintiffs
here win, even if they lose? In the sense that
their real attempt is to raise the public
profile of this issue. Much as some of the
earlier litigation in environmental and
mass tort litigation did, even though they lost? Even in the dioxin
cases, like Agent Orange, arguably the plaintiffs
didn’t get that much. But then they got Congress
to change veterans’ benefits in a bigger way. So could the plaintiffs
here be gaining through promoting future
legislative change, even if they lose
this specific case? Arguably, that was the Obama
administration’s initial gambit with the Clean Power Plan. They didn’t really want
the Clean Power Plan. They wanted to threaten costly
action that Congress would then pass a better climate statute. And so that could be a
similar strategy here. But on the other hand,
could this case backfire? And as you were saying,
result in an opinion that restricts standing
for all cases and so forth? So I’m wondering about your
thought about the litigation strategy, given that the
remedy seems so difficult. I think that’s an
admirable summary of all the things we think. And I think an
ambitious remedy would be what would break the court,
in political resistance. And all the other
gaming out I think is consonant with
what we both said. What the federal district
courts did in the school desegregation
cases was basically to put southern school
districts in receivership. And not just other ones. But you can do that
to a school district. It’s harder to do that
to the entire executive branch and the
legislative branch, right? Judge Garrity took
over Boston Harbor and put that into
receivership for a bit in an environmental case. There’s a photo
apparently of him on the cover of the
American Lawyer, I think, floating in
the waters of the Bay, and his robes billowing
out around him. Because he was– he was
the czar of Boston Harbor. Because he was ruling it
all through injunction. And you can do that
on a local scale. But it’s very hard
to see that happening at the national level. This is not– I would compare this to
Thurgood Marshall’s strategy on race, where they wanted
to win cases and establish incrementally legal principles
that would inexorably get you to Brown. And it worked beautifully. This is a very different
strategy from that. This is, we’re going
to lose, but we’re going to get past the motion
for summary judgment, which they did. And we’re going to get to
put the government on trial and make them look terrible. And so that might
be great theater. You might actually take
some hits on the doctrine. You have to weigh those
things against each other. I just wonder how– I think it might’ve been
really helpful to have that trial 10 years ago. Do you need it now? Because the most encouraging
thing in this picture is– back, Jonathan, when you and
I were debating, and making crazy debate arguments in
college and high school, we used to talk about the
environmental ethic, right? And how nothing good would
get solved until the ethic of society changes. And I think it is changing,
which is remarkable. I thought those arguments
were crazy back in the day. But it is changing. And so I don’t
know that you need this trial to speed that along. I think that’s starting
to happen on its own. I know some folks have class. But I want to thank
everybody for coming, and asking questions, and
engaging with this conversation today. [APPLAUSE]

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  1. A rise of CO2 content in the atmosphere of 5 times what it is today (410 ppm.) to about the same level of CO2 during the Jurassic period (a little over 2,000 ppm. ) would not make the world uninhabitable for mankind. It would need to get well above 2,000 ppm or so to even start causing problems for non-plant life. The pitiful 300 or 500 ppm predicted would not even come close the levels seen at the time of the dinosaurs. Sure, it will get a little warmer and the storms might get a little stronger for a while until global temps equalize.

    The world’s bread baskets (the areas that produce food) will most likely move more toward the poles. Possibly turning Northern Siberia and parts of Canada into the next big bread baskets instead of the frozen waste lands they are today…. So things will change, but it will take hundreds of years, more than enough time for populations to move and for food production and industry to adapt. Again, this end of the world scenarios (desertification drought and famine) being promoted is nothing but propaganda used by globalists to push their agenda….. Why would a world with the climate like that found during the Jurassic period be so bad? After all it did in fact produce the largest land animals and plants that ever lived.

    Case in point…….Farmers who run greenhouses pump extra CO2 into their grow rooms to increase production. If it makes their plants produce more food what do you think will happen if all the plants of the entire world get the same treatment?

    With more CO2 comes more plants, with more plants comes more O2 and water vapor (AKA more rain ) and the % of N (nitrogen) in the air drops, the air gets thicker and we all breath better….

    P.S. How do you verify that your mathematical model of future climate change and its affects are correct? You simply compare it to the last time CO2 levels really did reach the predicted levels… And when did that last happen? During the Jurassic, Triassic, and Cretaceous periods, a time of unparalleled plant and animal growth.

    The next time some moron tries to tell you that a modest increase in atmospheric CO2 today will cause the end of the world tell them to go ask a dinosaur if it is true……

  2. You have no idea how much this helped me on my final government paper. Thank you all for the awesome discussion on this case.

  3. Extreme retardation is taking over the world…. at least the media and pockets of loud voices. The vast majority are what is called "the silent majority" who actually work to make a living and can't be bothered about thinly veiled plots to institute global communism by using clueles kids to spout non-intellectual theories…. I would charge the media and schools with Child abuse because those same kids are going to grow up and have to work and eat and make tough decisions about life.

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