“No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine

67 Am. U. L. Rev. 1 (2017).

*Jeffrey Bain Faculty Scholar & Professor of Law, Lewis and Clark Law School.

**Philip H. Knight Professor of Law, University of Oregon School of Law. We thank Charles W. Woodward IV (Research Associate, Environmental and Natural Resources Law Center, University of Oregon School of Law) and Olivier Jamin (LL.M. Candidate, J.D., 2017, Lewis and Clark Law School) for excellent research and editorial assistance. And we are also grateful to the editors of this journal, who did an outstanding job of editing an Article with a plethora of diverse sources.

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government’s fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of due process and enforceable through the Constitution’s due process clause. At trial, if the youth plaintiffs are able to prove that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, or abdicated its public trust duties, the decision could be transformative in global efforts to shift to an energy policy that does not threaten young people and future generations.

This Article examines Juliana, its context as part of a worldwide campaign of “atmospheric trust” litigation, its path-breaking reasoning, and its implications in the United States and abroad. The case has been described as “the case of the century” and, because of the harm it aims to address and the fundamental rights approach endorsed by the court, it just may be that. Pending the forthcoming trial and almost certain appeals, we think the case is, as the trial judge accurately recognized, “no ordinary lawsuit.”

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

—Judge Ann Aiken¹

Introduction

With no little irony, as humanity attempts to reverse course before plunging over a climate cliff, the American public elected a president apparently bent on accelerating fossil fuel production. The year 2016 closed as the hottest year on record.² Heated ocean waters threaten vast marine ecosystems worldwide.³ The Arctic sea ice hit its lowest recorded level.⁴ Scientists have warned that the massive West Antarctic ice sheet may now be in a process of “unstoppable” disintegration that could ultimately cause ten feet of sea level rise, enough to inundate coastal cities worldwide.⁵ The unprecedented urgency of greenhouse gas emission reduction arises out of nature’s “tipping points”—thresholds that can trigger dangerous feedback processes, which would unleash irreversible, “runaway” heating capable of destroying the balance of the planet’s climate system.⁶

In what scientists warn is a last opportunity to avert such climate tipping points, the world must rapidly restrict fossil fuel production and switch to safe, renewable energy.⁷ Instead, President Trump, who claimed that climate change was a hoax perpetrated by the Chinese,⁸ intends to spur production of $50 trillion worth of shale, oil, coal, and natural gas.⁹ He ordered agencies to resurrect the Keystone and Dakota Access Pipelines.¹⁰ He aims to open public land to increased oil and gas drilling and coal production,¹¹ rescind the Obama Administration’s Clean Power Plan,¹² and resume oil and gas leasing on the Arctic and mid-Atlantic continental shelves.¹³ Trump also announced American withdrawal from the Paris climate agreement.¹⁴ He selected the CEO of ExxonMobil, Rex Tillerson, as Secretary of State and a known climate-change denier, Scott Pruitt, to head the EPA.¹⁵

The cruel circumstance for young people is that actions taken during President Trump’s time in office may lock in a future of grave climate disruption within their projected lifetimes. The scientific community has clearly warned that continued greenhouse gas (GHG) emissions threaten irreversible atmospheric calamity. As author Fred Pearce stated, “Humanity faces a genuinely new situation . . . a crisis for the entire life-support system of our civilization and our species.”¹⁶ Sea levels could rise and inundate coastal cities around the globe, creating a fundamentally “different planet”—one not hospitable to human survival.¹⁷ Dr. James Hansen, formerly the nation’s chief climate scientist at NASA, has warned, “[F]ailure to act with all deliberate speed . . . functionally becomes a decision to eliminate the option of preserving a habitable climate system.”¹⁸

Into this bleak and dangerous picture, groups of youth stepped forward to defend the atmosphere from dangerous GHG emissions. In cases filed throughout the world over the past few years,¹⁹ they have asked courts to force a government response to the climate crisis and reduce GHG emissions.²⁰ In late 2016, only two days after the election of President Trump, the children gained a remarkable victory in Juliana v. United States²¹ when the U.S. District Court for the District of Oregon issued a landmark opinion underscoring the validity of their claims, denying the government’s motion to dismiss and allowing the case to go forward to trial.²²

As the court recognized at the outset of its opinion, this was “no ordinary lawsuit.”²³ For the past several decades, environmental lawsuits have relied largely on statutes or regulations. Juliana is instead a human rights case, challenging the government’s entire fossil fuel policy based on asserted constitutional rights to inherit a stable climate system.²⁴ At a time of unprecedented climatic danger, the children pursued a litigation strategy born from matching the law with the existential threat they face.

The Juliana plaintiffs charged that the government’s fossil fuel policies violated their fundamental constitutional rights to life, liberty, and property, breached the government’s constitutional public trust obligations, violated due process guarantees, and discriminated against them in violation of equal protection principles.²⁵ The court aptly recognized the case as a “civil rights action”²⁶—an action “of a different order than the typical environmental case”²⁷—because it alleged that federal actions “have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”²⁸

Judge Ann Aiken’s decision broke new legal ground, deciding that the children have a fundamental right to a climate system capable of sustaining human life.²⁹ Judge Aiken concluded that the right to a climate system capable of sustaining human life is protected against federal government interference by both the due process and equal protection clauses of the U.S. Constitution³⁰

The plaintiffs contend that the federal defendants are denying their basic right to a habitable climate system so that the current generation can reap the economic benefits from energy production levels which exacerbate global warming while transferring the most harmful consequences of these actions to their generation and future generations.

Findings & Recommendation at 10, Juliana, 217 F. Supp. 3d 1224 (D. Or. 2016) (No. 6:15-cv-1517-TC), ECF No. 146 [hereinafter Juliana Findings II].

as well as the public trust doctrine, which she found implicit in the due process clause and, indeed, implicit in sovereignty.³¹ The trial will focus on the issue of whether the government actually breached these constitutional rights.³²

At a time when the political system seems prepared to shun responsible climate action, the lawsuit may be the only legal mechanism that can “trump” the incumbent administration. If upheld on appeal, the case could be a legal game-changer for climate crisis and, perhaps, for environmental law as a whole.

This Article considers Juliana and its implications. Part I briefly describes the current climate crisis and the fossil-fuel production policies that drive it. Part II explains the wave of atmospheric trust litigation of which this lawsuit is a part. Part III proceeds to examine Judge Aiken’s preliminary rulings on procedural issues that required resolution before moving to the substantive claims. These issues, involving the political question doctrine and the young plaintiffs’ standing, concern the proper role of courts in the climate crisis. Part IV explores the court’s due process ruling and the concept of fundamental rights in American constitutional law, describing the Juliana decision as a logical extension of existing jurisprudence.

Part V proceeds to consider the public trust doctrine (PTD), which Judge Aiken decided was implicit in due process, and contends that the court’s application of this ancient principle to the federal government was both well-founded and consistent with case law. Part VI explains the road ahead in Juliana by anticipating the trial phase of the litigation. Part VII examines the international march of atmospheric trust litigation, of which the Juliana case is a part. Several international cases have recognized fundamental environmental rights embedded in the PTD and expressed in the “right to life” provisions of national constitutions.³³ The Article concludes that Juliana could—and should—signal a significant change to environmental law at the outset of an era in which the federal government seems quite prepared to wage a potentially deadly gamble with the future of young people.

I. The Climate Crisis³⁴

Despite climate denial in the halls of Congress,³⁵ there is little or no scientific question that the world has entered an era of climate instability, if not imminent catastrophe.³⁶ The planet recently surpassed 400 parts per million (ppm) of carbon dioxide (CO₂) in the atmosphere, “never to return below it in our lifetimes.”³⁷ Fifteen of the sixteen hottest years on record have occurred since 2001.³⁸

While the planet has heated roughly 2.4 degrees Fahrenheit since the Industrial Revolution,³⁹ warming at the poles is more extreme, with winter month temperatures near the North Pole at times soaring between 36 to 50 degrees Fahrenheit above average.⁴⁰ Ocean warming is melting ice masses across the Arctic, Antarctica, and Greenland, setting record lows in ice measurements.⁴¹ Warmer water temperatures combined with planetary ice melt cause sea levels to rise.⁴² In a recent study, Dr. James Hansen, the former chief climate scientist at NASA, observed that continued heating will make it “impossible to avoid large-scale ice sheet disintegration with sea level rise of at least several meters.”⁴³ Such sea level rise would leave most coastal cities uninhabitable.⁴⁴ Dr. Hansen thought that the cost to society of functionally losing all coastal cities was “practically incalculable.”⁴⁵

Carbon emissions now devastate marine ecosystems. The oceans have absorbed more than 90% of the excess heat energy generated by fossil fuel consumption, causing massive coral reef bleaching and death, as well as depleted oxygen levels in the ocean.⁴⁶ Marine absorption of CO₂ from human emissions has made the oceans 30% more acidic than before the Industrial Revolution, jeopardizing shellfish survival.⁴⁷

Scientists warn that the world faces dangerous “tipping points,” which are capable of triggering irreversible and uncontrollable heating that would destroy the planet’s climate system.⁴⁸ Almost ten years ago, the Ninth Circuit recognized this threat, stating that “climate change may be non-linear, meaning that there are positive feedback mechanisms that may push global warming past a dangerous threshold (the ‘tipping point’).”⁴⁹ As an example of just one such process, vast areas of melting permafrost now release large amounts of CO₂ and methane (both GHGs) into the atmosphere, causing a feedback loop that further increases the temperature on Earth and, in turn, melts more permafrost, causing an even greater release of GHGs.⁵⁰ Melting ice sheets create a similar feedback loop, known as the albedo effect, as less ice remains to reflect heat away from Earth.⁵¹

Delay in mounting an effective climate response allows tipping points—both known and unknown—to compound, necessitating further drastic and severe countermeasures to prevent runaway heating. As the trial court judge in the Washington atmospheric trust case starkly put it, “[The younger generations’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emissions of GHGs before doing so becomes first too costly and then too late.”⁵² In June 2017, former UN climate chief Christiana Figueres, along with several climate analysts, announced that it was still possible, though barely, to avoid runaway climate change, but the effort requires a massive global project to bend down the CO₂ emissions curve by 2020, and to sustain rapid de-carbonization thereafter.⁵³ Stemming the tide of global warming will require a drastic departure from existing fossil-fuel policies.

A. Promoting Fossil-Fuel Policy with Little Regard for the Consequences

The combustion of fossil fuels accompanying the Industrial Revolution has led to a significant increase of CO₂ in the atmosphere over the last 150 years.⁵⁴ Although China surpassed the United States as the highest annual CO₂ emitter in 2005, the United States remains the world’s largest cumulative emitter of CO₂.⁵⁵ This responsibility for the lion’s share of emissions is hardly surprising given the U.S. government’s inexorable promotion of fossil fuels as the nation’s primary energy policy.

For more than a century, three fossil fuels—petroleum, coal, and natural gas—have accounted for over 80% of the total energy consumption in the country.⁵⁶ Federal energy policy includes leasing of public lands for fossil fuel development, undervaluing of royalty rates for the leased lands,⁵⁷ near automatic permitting approval for extraction,⁵⁸ continued underwriting of the fossil fuel sector (including subsidies for exploration, consumption, and exportation), and extensive financing of international fossil fuel projects.⁵⁹

Public records reveal that the federal government knew for decades of the danger these fossil fuel-promoting policies pose to the planetary climate system that underpins human survival. For example, a 1965 report by President Lyndon Johnson’s Scientific Advisory Committee acknowledged that human-caused CO₂ emissions risk “the health, longevity, livelihood, recreation, cleanliness and happiness of citizens who have no direct stake in their production, but cannot escape their influence.”⁶⁰ In a 1990 report entitled, “Policy Options for Stabilizing Global Climate,” the Environmental Protection Agency (EPA) reiterated the 1965 report’s conclusion that CO₂ was a dangerous anthropogenic pollutant.⁶¹ The 1990 report called for a 50% to 80% reduction in total U.S. CO₂ emissions by 2025, and it set a goal of stabilizing atmospheric CO₂ concentrations at 350 ppm to ensure global warming did not exceed 1.5 degrees Celsius above the preindustrial level.⁶² The 1.5 degrees Celsius heating limit was believed then—and is still widely viewed—to be the line beyond which irrevocable climate disruption lies. The 2015 Paris climate agreement defined the 1.5 degrees C limit as an aspirational world-wide goal.⁶³

For decades, a wide spectrum of government agencies published reports, studies, and recommendations exposing the dangers of continued fossil fuel combustion.⁶⁴ Instead of responding to these warnings with decisive actions, U.S. energy policy remains centered on promoting fossil fuels. Indeed, over the course of several decades, the fossil fuel industry contributed hundreds of millions of dollars to political campaigns to purchase influence and thereby forestall regulation.⁶⁵ Consequently, there is still no comprehensive regulation or pricing of CO₂ emissions in the United States. The top fossil-fuel producers have collectively reaped more than $1 trillion in profits since the new millennium, while the global damage and human death toll from climate chaos escalates worldwide.⁶⁶

B. Restoring Climate Stability: The Scientific Prescription

Although considerable climate harm is irrevocably underway, many leading scientists say it is still possible (albeit barely so) to restore climate equilibrium over the long term.⁶⁷ Such an effort would require reducing atmospheric CO₂ levels to 350 ppm, the limit at which the planet can head off warming in excess of 1.5 degrees Celsius.⁶⁸ In 2010, recognizing the need to quantify the emissions reduction necessary to stay within this safe zone, Dr. Hansen convened an international team of scientists to formulate a climate “prescription” for the planet.⁶⁹ This prescription remains a fulcrum for atmospheric trust litigation, representing the best available science concerning actions necessary to avert climate catastrophe.

The Hansen prescription addressed both carbon emissions and the planet’s natural carbon absorption mechanisms, since they are inextricably linked. The first part of the climate prescription presents a trajectory—or “glidepath”—of annual emissions reduction towards an ultimate goal of near-zero emissions.⁷⁰ To reach 350 ppm by the end of the century, the team prescribed a global emissions reduction of 6% annually, beginning in 2013.⁷¹ However, delayed reduction of carbon emissions sharply increases the level of necessary yearly reductions, perhaps to a point at which the reductions ultimately become too steep to plausibly salvage a habitable planet.⁷² For example, the Hansen team estimated that if concerted climate-action started in 2005—fifteen years after the 1990 EPA report recommending taking action, emissions reductions of just 3.5% a year could have restored climate equilibrium at 350 ppm by the end of the century.⁷³ But after years of inaction, that figure climbed to 6% per year by 2013.⁷⁴ The scientists projected that, if emissions reductions are delayed until 2020, the necessary annual global emissions reduction will rocket to 15% per year.⁷⁵ At some point, the necessary cuts will become too drastic for society to accomplish on a global scale. As the Hansen team emphasized, “[I]t is urgent that large, long-term emission reductions begin soon.”⁷⁶

Reducing emissions alone, however, will not restore climate equilibrium. Because approximately 40% of emissions persist in the atmosphere for over a thousand years at present removal rates, any climate restoration must also focus on removing much of the CO₂ that has already accumulated in the atmosphere.⁷⁷ Accordingly, the second part of the scientific climate prescription addresses the “drawdown” of CO₂ through massive reforestation (because trees naturally absorb CO₂) and improved agricultural measures (because soil also absorbs CO₂).⁷⁸ The Hansen team calculated that a full-scale massive restoration program could draw down about 100 gigatons (GT) of CO₂ from the atmosphere, the amount in 2013 that was key to restoring atmospheric carbon levels to 350 ppm.⁷⁹ However, because emissions reduction did not materialize at the projected rate in 2013 (emissions dropped only by 0.6% a year during 2012–2015, rather than 6%),⁸⁰ the drawdown amount must increase to compensate. Dr. Hansen calculated that further delay of emissions reduction for just three more years (until 2020) would increase the total CO₂ removal necessary by 50%, to 150 GT.⁸¹

These are the daunting effects of delay; metaphorically, they amount to an exponential rise in interest on the mortgage humanity took out on the planet through unrestricted use of fossil fuels. As one scholar noted, limiting global warming to 1.5 degrees Celsius at this point will take “a true world revolution.”⁸² A full and swift transition from fossil fuels to renewable fuels⁸³ will likely not be forthcoming without legal pressure, given the political barriers.⁸⁴

Such a transition could produce enormous co-benefits, preventing four to seven million deaths from pollution per year, creating some twenty million more jobs than would be lost in the transition, and stabilizing energy costs.⁸⁵ Phasing out fossil fuels also would safeguard society from the massive collateral damage that fossil fuel dependence imposes, including pipeline leaks,⁸⁶ exploding trains,⁸⁷ marine oil spill pollution,⁸⁸ fracking-induced earthquakes,⁸⁹ and groundwater pollution.⁹⁰

There are clear signs that a transition is underway. As Richard Heinberg and David Fridley of the Post Carbon Institute claimed, “Fossil fuels are on their way out one way or another. . . .”⁹¹ In fact, renewable energy already employs more people than the oil and gas industries,⁹² and global investment in solar and wind is double that of fossil fuels.⁹³ The reasons are simple: (1) easy sources of fossil fuels have been tapped, so continuing to extract the remaining sources is less economically feasible;⁹⁴ and (2) the foundation of renewable energy sources is technology, not fuel, so prices should fall as efficiency increases.⁹⁵ Despite these changes, however, the market is not responsive to the urgency posed by climate crisis, and relying on a market-driven transition is unrealistic. As one analytical team observed, “[T]he shift to renewable energy isn’t happening fast enough to avoid the catastrophic legacy of fossil-fuel dependence . . . .”⁹⁶

Consequently, a comprehensive response to the climate crisis will require more than simply encouraging renewable energy investment and development; it now will necessitate aggressive curtailment of fossil-fuel extraction. Analysts warn that potential carbon emissions from currently operating oil and gas fields in the world can cause planetary heating greater than the 1.5 degrees Celsius increase targeted in the Paris agreement.⁹⁷ Operating coal mines alone could cause the planet to surpass a two degrees Celsius temperature rise.⁹⁸ Quite simply, time is of the essence. As the Hansen team declared, “[W]e have a global emergency.”⁹⁹

II. Atmospheric Trust Litigation and the Juliana Case

The Juliana case is part of a wave of atmospheric trust litigation launched by the non-profit organization, Our Children’s Trust. Recognizing that looming tipping points necessitate a rapid and decisive response to the planet’s atmospheric crisis—and that the crisis only worsened over several decades while the political branches indulged in climate-change denial—the Atmospheric Trust Litigation (“ATL”) campaign has turned to the judiciary for eleventh-hour relief to force worldwide emissions reductions.¹⁰⁰

ATL is a full-scale, coordinated movement, with multiple suits pending and others teed up in different forums, all connected by a common template of science and law.¹⁰¹ As Professor Randall Abate observed, “Within the past five years, ATL has been a primary focus of climate justice litigation and it has made significant progress in advancing its theory in U.S. and foreign domestic courts.”¹⁰² The litigation campaign began in May 2011, when young people filed legal processes in every state in the United States, launched a federal suit,¹⁰³ and began plans for lawsuits in other countries as well.¹⁰⁴

The suits and petitions were premised on the public trust doctrine, an ancient principle dating back 1500 years to public rights articulated in Roman law.¹⁰⁵ The modernized principle characterizes essential natural resources as part of an enduring ecological endowment—a “trust”—and designates government actors as trustees over essential resources, charging them with fiduciary duties of protection and restoration to sustain these resources for the benefit of the present and future public.¹⁰⁶ The public trust principle exists in every state¹⁰⁷ and is evident in the legal systems of nations throughout the world.¹⁰⁸ Professors Gerald Torres and Nathan Bellinger aptly described the principle as the “law’s DNA.”¹⁰⁹ With constitutional underpinnings, the public trust doctrine presents a fundamental-rights framework for articulating climate obligations that transcend jurisdictions across the planet.¹¹⁰

The basic ATL case applies public trust principles to the atmosphere,¹¹¹ making the following claims: (1) the air and atmosphere, along with other vital natural resources, are within the res of the public trust, and therefore subject to special sovereign obligations; (2) the legislature and its implementing agencies are public trustees; (3) both present and future generations of the public are beneficiaries of the public trust; (4) the government trustees owe a fiduciary duty of protection against “substantial impairment” of the air, atmosphere, and climate system, which amounts to an affirmative duty to restore its balance; and (5) courts have a duty to enforce these trust obligations. Scores of cases make clear that the public trust principle imposes obligations separate from statutory law.¹¹² Throughout the course of the ATL campaign, law professors submitted amicus briefs in key cases to explain the basis and scope of the public trust, its constitutional character, and the crucial role of the judiciary in enforcing the public trust in the present climate context.¹¹³

The ATL approach recognizes that, in order to curb global warming, the law must reflect the actual physical, chemical, and biological requirements of the planet. ATL petitions and lawsuits demand enforceable climate recovery plans from government trustees to reduce carbon emissions at the rate called for by the best available science, epitomized by the scientific prescription described above.¹¹⁴ The campaign anticipates long-term implementation of climate recovery plans under continuing court supervision, a remedy characteristic of other types of institutional litigation.¹¹⁵ Although conventional statutory approaches held promise when the world had several decades to confront the growing climate crisis, the deadlines imposed by nature’s tipping points now require a judicial remedy that can deliver widespread relief tailored to the rapid carbon emissions reduction necessary to avoid planetary calamity.¹¹⁶

Beyond its potential to offer relief on a macro-scale, the ATL campaign brings a fundamental rights approach to climate crisis. Statutory and regulatory law can be vulnerable to erratic political whims of the legislative and executive branches, producing extreme destabilization from one administration to the next—as evidenced by President Trump’s changes to the Obama climate initiatives.¹¹⁷ The climate crisis demands broad, enduring, system-changing solutions that hold the promise of protecting life, liberty, and property. As a complement to existing statutes, ATL aims to set firm boundaries on political discretion through the assertion of fundamental rights of constitutional character that cannot be ignored by the current administration or any other.¹¹⁸

The Juliana case was filed in the U.S. District Court for the District of Oregon in September 2015, on behalf of twenty-one youth plaintiffs from across the United States,¹¹⁹ challenging—quite literally—the entire fossil-fuel policy of the United States. The suit named multiple federal agencies with control over the United States’ fossil-fuel policies as defendants.¹²⁰ Early in the Juliana litigation, the fossil-fuel industry intervened through trade associations, siding with the federal government in defending U.S. fossil-fuel practices.¹²¹

The Juliana complaint asserted that, by promoting the development of fossil fuels, the federal government violated the youngest generation’s constitutional rights and both caused and allowed substantial impairment of essential natural resources protected by the public trust.¹²²

The complaint described the entire fossil-fuel regime and chronicled its governmental support over decades through massive subsidies, regulatory permits, leasing, exploration, drilling and mining public lands and offshore areas, and approving export proposals.¹²³ Describing a pattern that “shock[s] the conscience,”¹²⁴ the youth plaintiffs alleged:

For over fifty years, the United States of America has known that [CO₂] pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival. Defendants also knew the harmful impacts of their actions would significantly endanger Plaintiffs, with the damage persisting for millennia. Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels . . . . Defendants have acted with deliberate indifference to the peril they knowingly created.¹²⁵

The Juliana plaintiffs also charged that “[t]he present level of [GHG emissions] and [associated] warming, both realized and latent, are already in the zone of danger,” asserting that “our country is now in a period of ‘carbon overshoot,’ with early consequences that are already threatening and that will, in the short term, rise to unbearable unless [the government] take[s] immediate action.”¹²⁶ They pointed out that the harm is likely to continue into the foreseeable future, particularly from ocean acidification, rising sea levels, damaged fresh water resources, and other irretrievable impacts.¹²⁷ Moreover, the youths alleged that the federal government—controlling over a quarter of the planet’s GHG emissions—has no plan to constrain those emissions to levels that do not threaten the ecological functions of the planet.¹²⁸

Through detailed allegations, the complaint portrayed the potential irreparable harm of a most grave and unrelenting kind. Unlike many forms of harm addressed routinely by the legal system, climate disruption cannot be corrected by monetary compensation, for the conditions supporting life cannot be readily restored once lost. Moreover, the magnitude of harm alleged by plaintiffs falls into an unprecedented category, as it hovers inexorably—and in nearly unfathomable variations—not only over the plaintiffs’ entire generation, but over all foreseeable future generations as well. The haunting prospect of such irreparable harm both brings this case into the protective tradition of civil law but also sets it apart from any other precedent in terms of the human interests at stake and the expediency with which court rulings must issue in a time of urgency. Such irreparable harm forms the cornerstone of not just the Juliana case but of all other atmospheric trust cases brought on the state and global level—reflecting the core human rights struggle in resisting fossil fuels.

As for a remedy, the Juliana plaintiffs sought a judicial order requiring government defendants “to prepare and implement an enforceable national remedial plan” to stabilize the climate system in accordance with the best available science.¹²⁹ As reflected in the Hansen team’s prescription described above,¹³⁰ the plan must comprise both (1) a de-carbonization project to fully phase out fossil-fuel emissions; and (2) a draw-down project to naturally extract existing excess atmospheric CO₂.¹³¹ The plaintiffs seek continuing court jurisdiction to monitor and enforce implementation of the national remedial plan.¹³²

The youth plaintiffs gained an initial victory in the litigation in April 2016 when Magistrate Judge Thomas Coffin recommended denial of the government’s and fossil-fuel interveners’ motions to dismiss in all aspects.¹³³ Magistrate Coffin also found that the plaintiffs’ stated claims for relief were grounded in the due process and equal protection guarantees as well as the federal public trust principle, implicit in the constitution.¹³⁴ On the youths’ standing, Coffin stated, “Given the allegations of direct or threatened direct harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged concrete injury of a constitutional magnitude.”¹³⁵

Magistrate Coffin’s findings were then reviewed by Judge Ann Aiken, U.S. District Judge for the District of Oregon. Oral argument took place in September 2016, drawing hundreds of school children to the federal courthouse.¹³⁶ In November 2016, Judge Aiken issued a groundbreaking opinion affirming Magistrate Coffin, validating the youth’s claims, and denying the defendants’ motions to dismiss.¹³⁷

The case proceeded to the discovery phase with a trial expected in early 2018.¹³⁸ In May 2017, in a stunning development, the industry interveners moved to withdraw from the case.¹³⁹ The motion was granted by the court on June 28, 2017.¹⁴⁰ Meanwhile, the federal defendants embarked on a strategy to delay the discovery and filed an interlocutory appeal to the Ninth Circuit.¹⁴¹ On June 8, 2017, Judge Ann Aiken affirmed Magistrate Coffin’s recommendations to deny defendants’ motion to certify an appeal to the Ninth Circuit.¹⁴² Judge Aiken’s order thereby ended the defendants’ pursuit of an interlocutory appeal through normal processes, but the Trump administration responded by filing a motion for a writ of mandamus with the Ninth Circuit, seeking an appeal.¹⁴³

Writs of mandamus are reserved for the most extraordinary and compelling situations in which ordinary rules of appellate procedure must be overridden to avoid a manifest injustice. For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself. The writ should not be granted and we should all question why the Trump Administration’s lawyers are willing to try such a trick rather than forthrightly defend the case.

When the Framers divided power within the government, they did it so that the branches could not only check and balance each other, but also poke and prod when necessary. The Juliana litigation is a powerful poke and prod to the entire federal government on the question of climate responsibility. In that sense, Juliana might well be the most important lawsuit on the planet right now and the government knows it. That’s why Trump’s lawyers are so desperate to avoid an honest fight.

“Most Important Lawsuit in the World,”Mercury News Int’l, https://www.mercurypress.com/most_important_lawsuit_in_the_world (last visited Oct. 23, 2017). Invited by the Ninth Circuit motions panel to submit a letter in response to the defendants’ motion seeking a writ of mandamus, Judge Aiken and Magistrate Coffin recommended that the case should proceed to trial rather than being interrupted by an interlocutory appeal. Letter from U.S. Dist. Court Judge Ann Aiken & U.S. Magistrate Judge Thomas Coffin to the Ninth Circuit Motions Panel (Aug. 25, 2017), https://static1.squarespace.com/static/571d109b04426270152febe0/t/59a08038cd39c3292add0e79/1503690808950/US+District+Court+letter+to+Ninth+Circuit.pdf (explaining that the appeals court should not grant the “extraordinary” remedy of mandamus because (1) the youth plaintiffs have no other means to obtain the desired relief; (2) the case raises new and important issues of the first impression; and (3) the government will not be irrevocably damaged by proceeding to trial because any error can be corrected through the normal appeals process following judgment; Judge Aiken and Magistrate Coffin maintained that their discovery and trial management plan would narrow the scope of the plaintiffs’ discovery requests, aided by the intervenors’ exit from the litigation, and noted the apparent absence of any allegedly objectionable discovery rulings thus far; they also pointed to their plan to hold a bifurcated trial, first focusing on standing to sue and liability, and then proceeding to a remedial phase).

Multiple groups, including some sixty-three law professors, submitted amicus briefs on behalf of the youth plaintiffs urging the Ninth Circuit to deny the government’s motion for a writ of mandamus and allow the trial to proceed.¹⁴⁴ As of this writing, that motion was still pending.¹⁴⁵ The discussion below first explores the procedural defenses addressed in the landmark Juliana opinion and then proceeds into a discussion of the substantive legal issues.

III. Procedural Thresholds

As is often the case in climate lawsuits against the government, the Juliana defendants raised procedural defenses involving the political question doctrine and the doctrine of standing.¹⁴⁶ Judge Aiken rejected the government’s arguments that the case involved an unreviewable political question, relying heavily on the Supreme Court’s criteria for political questions established in Baker v. Carr,¹⁴⁷ the landmark redistricting case.¹⁴⁸ Judge Aiken also dismissed the government’s allegation that the youths lacked standing.¹⁴⁹

We consider each of these preliminary matters in turn below, but we first note a broader theme identified by Yale law professor Douglas Kysar and R. Henry Weaver in a probing article on climate litigation.¹⁵⁰ Kysar and Weaver recounted the early dismissal of nearly all tortious climate cases brought before Juliana, based on procedural grounds.¹⁵¹ They wrote that “[w]hether through deference, displacement, or deliberate sabotage, anxious courts have found ways to ignore the climate change plaintiff.”¹⁵² These decisions represent, in aggregate, a troubling mass “retreat” from the actual, imminent, and rapidly worsening, context of climate change.¹⁵³ Judicial inaction is hardly neutral, for as Kysar and Weaver pointed out, “inaction can inflict a symmetric violence.”¹⁵⁴

The error of the nihilist judge is to . . . abdicate their duty to decide because of the complex or dramatic nature of a harm and the remedy it seems to necessitate. For instance, judges seem to believe that, short of ordering a whole restructuring of the global economy, their only option in climate change litigation is to avoid exercising jurisdiction in the first place. Again, stuck in a binary choice between denial and nihilism, most courts opt for the latter.

Id. (manuscript at 67) (emphasis added) (citations omitted).

A. The Political Question Defense

The fossil-fuel industry intervenors and the government contended that the court lacked jurisdiction because the case involved a non-justiciable political question, an issue the government has successfully invoked in other environmental cases.¹⁵⁵ The political question doctrine, first articulated by Chief Justice John Marshall in Marbury v. Madison,¹⁵⁶ forecloses judicial review of certain questions that courts determine are more appropriate for resolution by the political branches of government.¹⁵⁷

In Baker v. Carr, which ruled that political redistricting was not immune from judicial review under the political question doctrine, Justice William Brennan identified several criteria by which courts may identify political questions.¹⁵⁸ The most important of these principles are: (1) a demonstrable commitment to a non-judicial branch of government; (2) a lack of judicially manageable standards for resolving an issue; and (3) the impossibility of deciding the dispute without an initial policy choice clearly appropriate for non-judicial discretion.¹⁵⁹

Judge Aiken engaged in a searching inquiry of the political question doctrine, noting its importance in assuring an appropriate balance of power between the three branches of government.¹⁶⁰ As Judge Aiken observed, “[A] court cannot simply err on the side of declining to exercise jurisdiction when it fears a political question may exist; it must instead diligently map the precise limits of jurisdiction.”¹⁶¹

Judge Aiken determined that the first factor did not apply because “climate change policy is not inherently, or even primarily, a foreign policy decision.”¹⁶² Aiken proceeded to conclude that the other two factors were likewise inapplicable because the plaintiffs did indeed present a dispute within the court’s competence. Remarking on the plaintiffs’ charge that the government’s “aggregate actions violate[d] their substantive due process rights and the government’s public trust obligations,”¹⁶³ Judge Aiken emphasized, “At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.”¹⁶⁴

The defendants complained that, by not identifying violations of statutory or regulatory law, the plaintiffs left the court without standards to apply. But Judge Aiken responded that “[p]laintiffs could have brought a lawsuit predicated on technical regulatory violations, but they chose a different path. . . . Every day, federal courts apply the legal standards governing due process claims to new sets of facts.”¹⁶⁵

The court recognized that the plaintiffs sought broad-based relief in the form of a national remedial plan, and that the “[c]ourt could issue the requested declaration without directing any individual agency to take any particular action.”¹⁶⁶ Judge Aiken acknowledged that the court would have to “exercise great care” in fashioning a remedy that would “avoid separation-of-powers problems,” perhaps by declaring that the government must “ameliorate plaintiffs’ injuries” but not “specify[ing] precisely how to do so.”¹⁶⁷

The recent decision of the Ninth Circuit in Washington v. Trump,¹⁶⁸ upholding a district court injunction of the initial Trump executive order on immigration, may be a harbinger of how the Ninth Circuit could react to Judge Aiken’s opinion. A unanimous panel of the court rejected the federal government’s argument that the President’s immigration decisions, especially when motivated by national security, were not judicially reviewable, a position quite similar to the government’s invocation of the political question doctrine in Juliana.¹⁶⁹ The court had little difficulty in rejecting this allegation, explaining that courts “routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security.”¹⁷⁰ The Ninth Circuit panel explained that a claim of unreviewability of executive and legislative acts “runs contrary to the fundamental structure of our constitutional democracy” and concluded that it was “beyond question” that the federal judiciary may remedy constitutional violations by the Executive.¹⁷¹ If alleged actions in defense of national security are reviewable, the dangerous atmospheric pollution at issue in Juliana should be equally subject to judicial scrutiny.

B. Standing

The government and industry defendants also challenged the standing of the twenty-one youth plaintiffs in the Juliana case. As a threshold inquiry, standing requires the plaintiff to demonstrate that the injury complained of is: (1) concrete, particularized, and actual or imminent; (2) fairly traceable to the defendant’s conduct; and (3) likely to be redressed by a favorable court decision.¹⁷² With respect to the first factor, requiring concrete harm, nearly thirty pages of the youth plaintiffs’ complaint detailed specific harm already happening to plaintiffs as a result of climate disruption in their regions.¹⁷³ In the opening oral argument of the Juliana case, plaintiffs’ attorney introduced Jayden F., a thirteen-year-old Louisiana plaintiff sitting before the court, as a victim of extreme flooding just two weeks prior.¹⁷⁴ The government contended that because climate harm affects everyone on Earth, plaintiffs’ injuries amounted to a “nonjusticiable generalized grievance” defeating the case or controversy requirement of Article III of the Constitution.¹⁷⁵ The court, however, thought otherwise, citing a plethora of cases holding that a plaintiff asserting a “concrete and particularized” injury does not lack standing, even if many others experience harm from the same action.¹⁷⁶

Plaintiffs have alleged, and federal defendants have since admitted, that human induced climate change is harming the environment to the point where it will relatively soon become increasingly less habitable causing an array of severe deleterious effects to them which includes an increase in allergies, asthma, cancer, cardiovascular disease, stroke, heat related morbidity and mortality, food-borne disease, injuries, toxic exposures, mental health and stress disorders, and neurological diseases and disorders. These are concrete, particularized, actual or imminent injuries to the plaintiffs that are not minimalized by the fact that vast numbers of the populace are exposed to the same injuries. It would surely be an irrational limitation on standing which allowed isolated incidents of deprivation of constitutional rights to be actionable, but not those reaching pandemic proportions.

Juliana Findings II, supra note 30, at 14 (emphasis added). The opinion highlighted the plight of Jayden, noting that she and her siblings woke up in their house on August 13, 2016 to find floodwaters “pouring into [their] home through every possible opening” and “a stream of sewage and water running through [their] house.”¹⁷⁷ The court also found “concrete and particularized” harm that is “actual or imminent” from other harms alleged in the complaint, such as (1) drought that damaged salmon harvests; (2) high temperatures that harmed orchards and required new irrigation systems; (3) decreased snowpack that inhibited recreational skiing; (4) forest fires that injured asthmatics; and (5) algae blooms that harmed drinking water supplies.¹⁷⁸

As to the second standing factor, the court determined that the plaintiffs’ injuries were “fairly traceable” to the challenged government actions and inactions because—at least at the motion to dismiss stage—the judge was bound to accept the plaintiffs’ allegations as true.¹⁷⁹ Judge Aiken also noted plaintiffs’ allegation that the federal government had jurisdiction over “a substantial share of worldwide [GHG] emissions,” as the second-largest producer and consumer of global CO₂ emissions.¹⁸⁰ The court decided that, although causal chains may be difficult to prove on the merits, at the pleading stage they were sufficient to establish a satisfactory causal link between the government’s conduct and the alleged injuries.¹⁸¹

Finally, as to the third standing factor, Judge Aiken decided that the youths’ injuries could be redressed by judicial relief. Reasoning that, because the federal government controlled a substantial amount of global GHG emissions, a reduction of those emissions would reduce atmospheric pollution and slow climate change.¹⁸² The fact that some uncertainty remained was not disabling because all that the factors required was a “substantial likelihood that the Court could provide meaningful relief.”¹⁸³ The plaintiffs’ request that the court order the government to “cease their permitting, authorizing, and subsidizing fossil fuels” and “ensure that atmospheric [carbon pollution] is no more concentrated than 350 ppm by 2100” through a national plan to stabilize the climate was, according to Judge Aiken, adequate to establish standing to sue.¹⁸⁴

IV. Fundamental Rights and the Environment

Although the young plaintiffs set forth several distinct claims arising from separate provisions of the Constitution, for simplicity’s sake the court referred to those as “due process claims.”¹⁸⁵ One of these claims arose from the plaintiffs’ contention that the government tolerated or caused GHG emissions “to rise to levels that dangerously interfere with a stable climate system,” thereby knowingly endangering their health and welfare.¹⁸⁶ Further, even after recognizing the dangerous situation, the government perpetuated the danger by continuing to promote and allow dangerous levels of fossil fuel production, consumption, and combustion.¹⁸⁷

Addressing a subset of the plaintiffs’ due process and equal protection claims, the court engaged in an inquiry as to whether the right to a climate system capable of sustaining human life is a fundamental constitutional right.¹⁸⁸ Fundamental rights are examined under strict scrutiny, meaning government action will be invalid unless it demonstrates the action is narrowly tailored and serves a compelling state interest.¹⁸⁹ Without such close judicial review, Judge Aiken thought that the government’s “affirmative actions would survive rational basis review.”¹⁹⁰

A. A Fundamental Right to a “Climate System Capable of Sustaining Human Life”

Fundamental liberty rights may be expressly enumerated in the Constitution or “(1) ‘deeply rooted in this Nation’s history and tradition’ or (2) ‘fundamental to our scheme of ordered liberty.’”¹⁹¹ Aware that the Supreme Court cautioned that such rights be articulated only with the “utmost care,”¹⁹² Judge Aiken turned to recent Supreme Court decisions announcing fundamental liberty rights to privacy, procreation, and marriage for guidance.¹⁹³ Quoting Justice Kennedy’s admonition in Obergefell v. Hodges,¹⁹⁴ the right-to-marry case, to the effect that “the nature of injustice is that we might not always see it in our own times,”¹⁹⁵

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights . . . did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

135 S. Ct. at 2598.

Judge Aiken understood that a court must exercise “reasoned judgment” when deciding on fundamental rights.¹⁹⁶ She recognized that “identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”¹⁹⁷ Judge Aiken also observed that the marriage right recognized by the Court supported other vital liberties like family and social order.¹⁹⁸

With these background principles in mind, Judge Aiken articulated a fundamental liberty right to a “climate system capable of sustaining human life,” saying that the court had “no doubt that the right . . . is fundamental to a free and ordered society.”¹⁹⁹ Aiken reasoned that “[j]ust as marriage is the ‘foundation of the family,’ a stable climate system is quite literally the foundation ‘of society, without which there would be neither civilization nor progress.’”²⁰⁰ Judge Aiken described plaintiffs’ claims as “[e]choing Obergefell’s reasoning” in their assertion that “a stable climate is a necessary condition to exercising other rights to life, liberty, and property.”²⁰¹ She rejected the government’s characterization that the youth plaintiffs sought freedom from all pollution, describing their claim as one that argued only against GHG pollution that threatened catastrophic results.²⁰² Then, writing with a broader stroke, Judge Aiken noted, “To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”²⁰³

Although the court relied heavily on the Supreme Court’s marriage and procreation decisions,²⁰⁴ it could have cited several other fundamental rights declared by the Supreme Court over the years.²⁰⁵ For example, the right of privacy is fundamental—even though it is implicit²⁰⁶—protecting marital, child-rearing, and private sexual choices.²⁰⁷ Similarly, exercising the right to vote, to participate in the political process, and to travel interstate are fundamental liberties.²⁰⁸ There are also fundamental rights to fair process in criminal cases and in government deprivations of property and liberty.²⁰⁹ These decisions make clear that the Supreme Court has a long history of finding fundamental rights implicit in the Constitution, and the Juliana result is consistent with the judicial approach to defining other fundamental rights. If rights to privacy, procreation, marriage, and interstate travel are fundamental liberty rights, the right to a healthful atmosphere that can sustain human life and protect property would seem no less fundamental. A healthful atmosphere forms the linchpin to survival and, indeed, remains the precondition to exercising all other political and civil fundamental rights.²¹⁰

Judge Aiken did not suggest that the Due Process Clause protects all environmental claims; she limited the decision to “the right to a climate system capable of sustaining human life,” clarifying that such a right would not transform “any minor or even moderate act that contributes to the warming of the planet into a constitutional violation.”²¹¹ But those acts that “affirmatively and substantially damag[e] the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem” would, according to Judge Aiken, violate due process.²¹²

B. Challenging Government Inaction: The “Danger Creation” Exception

Judge Aiken recognized that, with limited exceptions, the due process clause does not impose an affirmative obligation on the government to act, even where necessary to protect due process rights.²¹³ One such exception—the “danger creation” exception—arises when government conduct puts an individual in peril due to a “deliberate indifference” to safety.²¹⁴ This indifference must be the product of a “culpable mental state more than gross negligence.”²¹⁵

The Juliana plaintiffs maintained that, “with full appreciation of the consequences,” the government defendants knowingly caused—and continue to cause—“dangerous interference with our atmosphere and climate system.”²¹⁶ They cited the government’s “longstanding, actual knowledge of the serious risks of harm” posed by its failure to confront climate change.²¹⁷ Further, they alleged that the government had “a unique and central role” in creating the climate crisis “with full knowledge of the significant and unreasonable risks” involved.²¹⁸ Judge Aiken decided that the youth plaintiffs stated a valid claim in their assertion that the government’s actions and inactions put the public “in peril in deliberate indifference to their safety.”²¹⁹

the government knew its acts caused that danger; and [that] . . . the government with deliberate indifference failed to act to prevent the alleged harm. These stringent standards are sufficient safeguards against the flood of litigation concerns raised by [the government]—indeed, they pose a significant challenge to plaintiffs in this very lawsuit.

Id. at 1252. She agreed that if the plaintiffs could prove their allegations at trial, which Judge Aiken stated would require “rigorous proof,” due process would require government action to reduce emissions under the danger-creation exception.²²⁰

V. The Public Trust Doctrine and the Atmosphere

The Juliana case summons an ancient principle for a decidedly modern—indeed unprecedented—global threat. Some have accused the PTD of being irrelevant in a statutory era,²²¹ potentially undermining democracy and the separation of powers.²²² Government defendants characteristically describe the public trust principle as a mere common law doctrine limited to submerged lands and applicable only to the states.²²³ None of those criticisms and perceived limitations are well-founded. In Juliana, Judge Aiken gave an accurate interpretation of the PTD’s origin, scope, and effect and contributed a trailblazing recognition that the PTD is implicit in constitutional due process. The court’s opinion decisively brings the PTD into the twenty-first century.

A. The PTD as Implicit in Sovereignty

A clarion aspect of Juliana was its recognition that the PTD is an inherent constitutional limit on sovereignty.²²⁴ As Judge Aiken aptly noted, by limiting the ability of the legislature to dispose of essential natural resources, the principle protects the power of future legislatures to “provide for the well-being and survival of its citizens.”²²⁵ Like the police power and the right of condemnation, the PTD is an inherent “attribute of sovereignty”—recognized, but not created by the Constitution.²²⁶ As Aiken noted, the PTD is an ancient doctrine, originating in Roman law and finding its way to the United States through England.²²⁷ The doctrine therefore applies equally to the federal as well as state governments, as discussed below.²²⁸ Moreover, the PTD should raise no separation of power concerns when the courts merely pronounce the law and require the political branches to exercise their discretion within those bounds.²²⁹ The Juliana decision is certainly one in which the court aimed to invigorate, not intrude upon, the political branches of government.

In deciding that the PTD was an inherent aspect of sovereignty, Judge Aiken quoted Justice Kennedy’s language in Idaho v. Coeur d’Alene Tribe of Idaho,²³⁰ which declared that the PTD developed as “a natural outgrowth of the perceived public character of submerged lands, a perception which underlies and informs the principle that these lands are tied in a unique way to sovereignty.”²³¹ As an inherent limit on sovereignty, the PTD applies to all sovereigns, not just the states.²³² This limit—preserved by but not created by the Constitution²³³—is an “obligation [that] cannot be legislated away.”²³⁴ Recognition of the inalienable nature of the PTD would prove dispositive as to the plaintiffs’ PTD claims in Juliana.

B. The Scope of the PTD and the Duty of Protection

Judge Aiken framed the scope of the PTD by noting that public trust assets have long been part of a “taxonomy of property” recognizing the division of natural wealth into private and public property.²³⁵ The sovereign cannot abdicate control over public trust property, as made clear in Illinois Central Railroad v. Illinois²³⁶ when the Supreme Court said the Illinois legislature could not grant the shoreline of Lake Michigan to a private railroad company.²³⁷ Judge Aiken broadly referred to the “natural resources trust,” noting that “[i]n natural resources cases, the trust property consists of a set of resources important enough to the people to warrant public trust protection.”²³⁸ Although Aiken cited considerable authority for the proposition that air and atmosphere fall within the scope of the public trust,²³⁹ the court found it unnecessary to decide the question,²⁴⁰ anchoring the plaintiff’s trust claims instead in the territorial seas.²⁴¹ Observing that the federal government owns most of the submerged land in the territorial seas,²⁴² and recognizing the long-settled public trust over “lands beneath tidal waters,” Aiken found a viable PTD claim because a number of plaintiff’s injuries were caused by GHG pollution of the atmosphere that produced ocean acidification and rising ocean temperatures.²⁴³

Juliana was not the only decision to interpret the scope of the PTD to reach the atmosphere because of its effects on navigable waters. In Foster v. Washington Department of Ecology,²⁴⁴ a Washington Superior Court stated that “[the youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming,” emphasizing the inextricable relationship between navigable waters and the atmosphere and deciding that separating the two was “nonsensical.”²⁴⁵ The Alaska Supreme Court also suggested that the close relationship between the pollution of the atmosphere and the pollution of the oceans raised a PTD issue.²⁴⁶ Although there is growing precedent that the atmosphere is a PTD resource,²⁴⁷ even courts that do not expressly acknowledge the doctrine as a trust asset recognize a PTD claim when atmospheric pollution adversely affects traditional trust resources.

The Juliana court made clear the affirmative sovereign duty to protect assets in the trust, declaring that “[t]he natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to ‘protect the trust property against damage or destruction.’”²⁴⁸ This duty, Judge Aiken emphasized, inures “equally to both current and future beneficiaries of the trust.”²⁴⁹ As Aiken explained, “The government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust.”²⁵⁰ The court ruled that this trust duty was non-discretionary: “no government can legitimately abdicate its core sovereign powers.”²⁵¹ Judge Aiken announced that the youth plaintiffs stated a valid PTD claim by asserting that the government “nominally retain[ed] control over trust assets while actually allowing their depletion and destruction” through marine acidification and rising sea levels and temperatures.²⁵² As explained below, if proved at trial, neglect of the affirmative duty to protect trust assets would be a PTD violation, and therefore a constitutional violation as well.²⁵³

C. The PTD as an Implicit Constitutional Right

Judge Aiken described the public trust, with origins antedating the Constitution, as part of the “inalienable [r]ights” that the people secured through the creation of government.²⁵⁴ Explaining the social contract theory that influenced the founding generation, the court observed that “the Declaration of Independence and the Constitution did not create the rights to life, liberty, or the pursuit of happiness—the documents are, instead, vehicles for protecting and promoting those already-existing rights.”²⁵⁵ One of the powers that government cannot bargain away, she noted, is the “status of trustee pursuant to the public trust doctrine.”²⁵⁶ This public right was neither waivable nor conveyable.²⁵⁷

The court’s recognition of the public trust as protecting inalienable, inherent rights reserved by citizens in the original creation of government paralleled the approach forged in two important public trust decisions, both cited by the Juliana court. The first was Robinson Township v. Commonwealth,²⁵⁸ a 2013 plurality opinion of the Pennsylvania Supreme Court that defined public trust rights as “inherent and indefeasible” rights impliedly reserved by the citizens when forming government.²⁵⁹ The second was Oposa v. Factoran,²⁶⁰ a 1993 opinion of the Philippines Supreme Court, declaring that “these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.”²⁶¹

Building on the inalienable rights frame that preceded the Juliana case, Judge Aiken broke new ground by deciding that the PTD—although antedating the Constitution—was secured by and enforceable through the due process clause of the Fifth Amendment of the Constitution, which protects against the deprivation of life, liberty, and property from arbitrary federal or state governmental action.²⁶² Deciding that “public trust claims are properly categorized as substantive due process claims,” the court looked to tests defining the scope of fundamental rights under the due process clause: such rights must be “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”²⁶³ The court concluded that “public trust rights, related as they are to inherent aspects of sovereignty and the consent of the governed from which the United States’ authority derives, satisfy both tests.”²⁶⁴ Thus, the right to a stable climate system, implicit in due process, is a constitutionally protected right, a consequence of the government’s dominion over trust resources like submerged lands and oceans.²⁶⁵ Although the Fifth Amendment provided the plaintiffs’ cause of action, Judge Aiken declared that since the PTD was not explicit in the due process clause, it fell within the scope of Ninth Amendment protection as well.²⁶⁶

D. The Federal Public Trust Doctrine

Because the public trust is an attribute of sovereignty, Judge Aiken concluded that the PTD burdened the federal government.²⁶⁷ In doing so, she disagreed with the U.S. Court of Appeals for the District of Columbia Circuit, which ruled to the contrary in an unpublished and unreflective opinion rendered in an earlier federal ATL case, Alec L. ex rel. Loorz v. McCarthy.²⁶⁸ Judge Aiken found the D.C. Circuit’s reasoning unpersuasive, and for good reason. That decision seemed to over-read Justice Kennedy’s statements about the PTD from a decision having nothing to do with the federal government.²⁶⁹

As Judge Aiken recognized, PPL Montana, LLC v. Montana²⁷⁰ was not about the PTD at all.²⁷¹ Instead, it concerned the application of the equal footing doctrine to waterways in Montana.²⁷² In describing the equal footing doctrine, in a passing statement, Justice Kennedy distinguished it from the PTD, referring to the latter as a state-law doctrine.²⁷³ Kennedy’s dictum was not inaccurate, since the PTD has been largely interpreted by state courts. But the D.C. Circuit in its Alec L. decision invoked Kennedy’s statement in a context not remotely similar to the riverbed ownership question at issue in PPL Montana, stretching it beyond bounds to address the federal government’s obligations under the PTD. As Judge Aiken explained, the Alec L. court’s unpublished approach was “not a plausible interpretation” because “PPL Montana said nothing at all about the viability of federal public trust claims with respect to federally-owned trust assets.”²⁷⁴

Further, the Alec L. court’s reliance on PPL Montana, unsupported by any reasoning, was flatly inconsistent with the Supreme Court’s landmark PTD decision in Illinois Central Railroad v. Illinois. In Illinois Central, the Court recognized the PTD as an inherent limitation on the sovereignty of Illinois, deciding that the state legislature could not privatize the inner-harbor of Chicago to a railroad company.²⁷⁵ Illinois Central is widely considered binding on the states (and therefore a reflection of federal law),²⁷⁶ foreclosing wholesale privatization of public resources.²⁷⁷ Illinois Central was not based on state law, despite erroneous dicta in some subsequent cases; it was instead a pronouncement of federal law.²⁷⁸

Judge Aiken recognized that no Supreme Court decision had denied the existence of the federal PTD, and, in fact, well-reasoned lower court opinions recognized a federal PTD.²⁷⁹ Aiken explained that although the Supreme Court stated in its Coeur d’Alene Tribe decision that Illinois Central involved an interpretation of state law, that decision also recognized that the PTD’s “central tenets . . . applied broadly.”²⁸⁰ Moreover, Judge Aiken pointed out that, despite the PPL Montana Court’s statement that “the public trust doctrine remains a matter of state law,” the Court proceeded to describe how the American PTD diverged from the English PTD.²⁸¹ This led Judge Aiken to state, “I can think of no reason why the public trust doctrine, which came to this country through the Roman and English roots of our civil law system, would apply to the states but not to the federal government.”²⁸² Judge Aiken decided that, because the PTD is an inherent attribute of sovereignty, the federal sovereign is just as subject to the PTD as are the state sovereigns.²⁸³

E. The PTD and Congressional Displacement

The government argued in Juliana that the Clean Air Act (“CAA”) displaced the federal public trust claim, relying on an earlier Supreme Court case, American Electric Power Co. v. Connecticut.²⁸⁴ That decision concluded that the Clean Air Act displaced a federal common law nuisance claim brought against coal-fired plants for greenhouse gas pollution.²⁸⁵ In the earlier federal ATL case, Alec L., the government convinced the U.S. District Court for the District of Columbia that the CAA displaced the PTD under the American Electric Power holding.²⁸⁶ But the Alec L. court made no inquiry into the differences between a common law nuisance claim against polluters that could be regulated under the CAA and a public trust claim brought by citizens against government actors which failed to fulfill their constitutional fiduciary duty to protect the trust resource.

In an extensive analysis, Judge Aiken contrasted the two types of claims and determined that the inalienable aspect of the PTD, established long ago in the Supreme Court’s Illinois Central decision, was decisive.²⁸⁷ Aiken recognized that the PTD—as an inherent limit on sovereignty and implicit in the Constitution’s due process clause—imposed a non-displaceable obligation different from a federal common law nuisance claim.²⁸⁸ Judge Aiken declared that “[p]ublic trust claims are unique because they concern inherent attributes of sovereignty. . . . A defining feature . . . is that it cannot be legislated away. Because of the nature of public trust claims, a displacement analysis simply does not apply.”²⁸⁹

However prominent the displacement issue will be in the decision’s appeal, if the Ninth Circuit recognizes the constitutional force of the public trust, the appeals court should categorically reject the displacement argument raised by the government. As the American Electric Power Court noted, displacement analysis applies to common law: “The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute ‘speak[s] directly to [the] question’ at issue.”²⁹⁰ However, the trust represents a constitutional limit on sovereign authority. Thus, the American Electric Power inquiry, which looked simply to what the statutes address, is inappropriate in a constitutional context. For even when a government enacts laws to prevent harm to the assets held in trust, the basic trust question remains as to whether the laws are adequate, as implemented, to protect the natural asset for present and future generations.²⁹¹

F. The PTD and the Federal Property Clause

The Juliana decision rejected the government’s claim that a federal PTD was inconsistent with federal authority under the Constitution’s Property Clause.²⁹² The Supreme Court has ruled numerous times that the scope of federal authority under that provision is “without limitations.”²⁹³ But, as Judge Aiken noted that the Court has qualified its broad pronouncement, stating that “the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved.”²⁹⁴

Judge Aiken characterized the “defining feature” of the PTD as the duty to protect the corpus of the trust, a duty which “cannot be legislated away.”²⁹⁵ Thus, Aiken observed that the Court has never ruled that the federal government had authority under the Property Clause to “violate individual constitutional rights or run afoul of public trust obligations.”²⁹⁶ In other words, while the Property Clause may provide broad discretion for the federal trustee to choose between appropriate trust uses to benefit the public, it may not breach the trust by allowing wholesale impairment or destruction of the national wealth. Doing so would contravene the very purpose of the trust: to protect an endowment for present and future generations of the nation. The Property Clause authority—while expansive—is thus subject to constitutional rights, including the PTD.

VI. Juliana and the Road Ahead

Judge Aiken denied the federal government’s and the industry intervenors’ motions to dismiss. After discovery, the plaintiffs must prove that the federal government’s past and ongoing actions and inactions violated their constitutional rights as articulated by Judge Aiken. The discussion below provides a roadmap of the steps ahead.

A. The Ongoing Case: “The Trial of the Millennium”

Judge Aiken’s November 2016 decision set the stage for a trial on the merits as to whether the federal government’s energy policies breached its constitutional duty to protect the due process, equal protection, and public trust rights of the youth plaintiffs to a stable climate system. A trial presenting such broad evidence—geared towards ascertaining whether there have been violations of fundamental rights—is quite unusual in federal environmental law, which typically concerns judicial review of specific agency rules or enforcement actions under statutory authority. Environmental law is largely about administrative law.²⁹⁷Environmental attorneys typically engage more in administrative and appellate practice, rather than lawyering in trial courts.²⁹⁸

The trial stage of the Juliana case will—for the first time—put U.S. federal fossil-fuel policy on trial and subject it to broad public scrutiny. This attention prompted the youths’ attorneys to call this the “trial of the millennium.”²⁹⁹ Fossil-fuel practices have never been comprehensively assessed in terms of climate reality by the judiciary. Although some congressional hearings and media investigative reports have focused on discrete aspects of the government’s fossil fuel policy,³⁰⁰ a forum has never evaluated how U.S. fossil fuel policy in its totality measures up to the imperative of CO₂ reduction as illuminated by climate science.³⁰¹ The Juliana case provides the first opportunity to do so in a court of law. As Magistrate Coffin noted in his order recommending denial of the defendants’ motion to certify an appeal in the case,

Whether or not climate change is occurring, whether or not it is human-induced, and the degree of its severity and impact on the global climate, natural environment, and human health is quintessentially a subject of scientific study and methodology, not solely political debate. The judicial forum is particularly well-suited for the resolution of factual and expert scientific disputes. . . .³⁰²

Moreover, since Juliana was grounded in the Constitution, Congress may not—as it has done in the past with disputes based on statutes—make the case disappear by dictating the result.³⁰³

During the forthcoming trial, federal lawyers may try to downplay climate dangers and obfuscate climate science. But unlike political forums, a court offers a deliberative fact-finding forum subject to the rules of evidence, so strategies of “manufacturing doubt” (or facts) may be less effective in the courtroom.³⁰⁴ Government evidence will not receive the kind of judicial deference that it enjoys in administrative law cases challenging rules that are subject to notice-and-comment rulemaking.³⁰⁵ Instead, the government must carry the same burden of persuasion imposed on all civil litigants.³⁰⁶

1. The Focus of Discovery in Juliana

At the time of this Article’s publication, a temporary stay issued by a Ninth Circuit motions panel delayed the discovery process. The focus of discovery and trial in the Juliana case will mirror the elements of the plaintiffs’ claims. The public trust claim is rather straightforward, requiring evidence that the government, as trustee, allowed “substantial impairment” of crucial trust resources.³⁰⁷ A plethora of existing climate studies likely satisfy that basic threshold.³⁰⁸ Because the Juliana opinion focused on the ocean and shoreline environment as a trust resource, fact-finding will undoubtedly explore, at the least, the relationship between GHG emissions and ocean acidification, the effects of ocean acidification and rising temperatures on marine life, and the effect of rising global temperatures on sea levels.

The district court distilled the constitutional claims into one question: whether the government’s fossil fuel policies violated the youth’s fundamental due process rights to life, liberty, and property.³⁰⁹ The plaintiffs will certainly present evidence showing that government actors placed them (and their generation) in danger, or enhanced a position of danger, acting with “deliberate indifference to their safety.”³¹⁰ As Judge Aiken wrote, “Deliberate indifference requires creation of a dangerous situation with actual knowledge or willful ignorance of impending harm.”³¹¹

The evidence concerning the constitutional claims will focus on (1) the government’s knowledge of the climate danger and (2) its response to and perpetuation of that danger by continuing to promote fossil fuels.³¹² As to the first, numerous public reports referenced in the plaintiffs’ complaint and subsequent briefing show consistent warnings from climate scientists and agency staff to government leaders over the past several decades.³¹³ This climate-science inquiry is likely to explore the gravity and extent of the risk to young people and future generations, the tipping points and climate thresholds, and projections for the future.

As to the second issue, there are two aspects of the government’s fossil fuel policy to be addressed at trial, described by plaintiffs’ counsel in oral argument as two sides of the same coin: (1) the regulation side and (2) the production side.³¹⁴ The regulation side involves the failure to regulate CO₂ emissions.³¹⁵ The production side involves affirmative government steps to authorize and promote fossil fuel production and consumption. The complaint detailed a myriad of actions taken over the decades “in the areas of fossil fuel extraction, production, transportation, importation and exportation, and consumption” that cause dangerous cumulative atmospheric CO₂ concentrations.³¹⁶ Those accumulations disrupt the climate system, threatening “irreversible harm to the natural systems critical to Plaintiffs’ rights to life, liberty, and property.”³¹⁷

Days before President Obama left office, and over a year after the case was filed, the federal defendants submitted an answer to the plaintiffs’ complaint.³¹⁸ The answer included several significant admissions that may make it difficult for Trump Administration lawyers to contest many of the factual assertions in the complaint. The government acknowledged that the use of fossil fuels contributes CO₂ emissions,³¹⁹ “placing our nation on an increasingly costly, insecure and environmentally dangerous path.”³²⁰ The government also admitted that, for over fifty years, some officials in the federal government were aware of the growing body of climate research showing the potential danger from rising CO₂ levels.³²¹ Further, the government conceded that federal policies have contributed to present CO₂ levels, which “threaten the public health and welfare of current and future generations.”³²² The Trump Administration lawyers could offer an amended answer disputing the climate science but, as Professor Michael Burger has observed, “The last thing a Trump Administration [D]epartment of [J]ustice actually wants is to have the science of climate change go on trial.”³²³

In addition to evidence supporting the substantive due process, equal protection, and public trust claims, the plaintiffs must present facts supporting standing, showing causation between the government’s conduct and their injuries.³²⁴ Judge Aiken noted that, although “[e]ach link in these causal chains may be difficult to prove,” that difficulty did not make the case non-justiciable at the pleading stage of the litigation.³²⁵ The plaintiffs must also demonstrate redressability, namely, a “substantial likelihood” that a court remedy would address their injuries.³²⁶ The questions framed by the court included: (1) what part of the youth plaintiffs’ injuries are attributable to emissions beyond the government’s control; (2) despite such emissions, would the plaintiffs’ injuries be reduced if they obtained judicial relief; and (3) when will the world reach the climate-change tipping point of no return when irreversible consequences are inevitable, and could the defendants avoid that tipping point without cooperation from third parties?³²⁷

2. The Industry on Trial

Although the federal government’s answer to the plaintiffs’ complaint contained potentially significant admissions, certain aspects of the climate science and government response to climate change will proceed to trial. A judicially-supervised fact-finding process could have important ramifications outside of the case.³²⁸ The prospect of discovery in Juliana was intriguing from the outset because of the status of the fossil-fuel industry as an intervenor-defendant party.³²⁹ This intervenor status subjected the industry to discovery requests,³³⁰ creating opportunities for the plaintiffs’ attorneys to explore the longstanding, but largely surreptitious, relationship between the government and the fossil fuel industry.³³¹ When the industry intervenors moved to withdraw from the case in May 2017 they were facing the prospect of probing requests for admissions and other discovery requests.³³² Although the scope of discovery may narrow in light of the interveners’ exit from the case,³³³ the process still leaves the industry exposed to the possibility of damaging evidence coming to light.

One aspect of discovery will concern the relationship between the industry and government officials, and whether those officials and their agencies acted in a self-serving manner to extend favoritism to the industry’s goal of fossil-fuel promotion over the public they are constitutionally bound to represent. The answer to that question could have enormous implications not only as evidence for the constitutional claims—perhaps by explaining the intent of government officials to pursue what they seemingly knew was a dangerous energy policy—but it also may enhance the public trust claim. Any trust requires a fiduciary trustee to exercise a duty of loyalty towards the beneficiaries, which, in the case of a public trust, are present and future citizens.³³⁴ The trust requires avoidance of any conflict of interest—indeed, in Justice Cardozo’s famous words, “the punctilio of an honor the most sensitive.”³³⁵

Policies favoring the industry while harming the citizen beneficiaries would not augur well for the government defendants. Although breach of the duty of loyalty is not a necessary element of plaintiff’s public trust claim,³³⁶ a breach would fall within the complaint’s allegation that “[d]efendants have failed in their duty of care to safeguard the interests of Plaintiffs as the present and future beneficiaries of the public trust.”³³⁷ The broad sweep of that claim appears to warrant a probing inquiry as to whether industry influence over government decision makers tainted the decision making process. Thus, although the industry interveners withdrew from the case, the relationship between the fossil-fuel industry and government may be subject to discovery, making the industry vulnerable in a number of ways discussed below.

B. Ripple Effects Across the Legal and Social Landscape

Although there will likely be an appellate stage to the Juliana litigation in the Ninth Circuit, and perhaps the U.S. Supreme Court, the more immediate discovery and fact-finding stage of the case at trial could have dramatic ramifications both within and outside the legal field. Within the legal field, the climate science-fact finding may influence other ATL cases in other jurisdictions, both in the United States and abroad. Because Juliana is part of a coordinated litigation campaign, with a number of cases pending throughout the nation and the world,³³⁸ facts established at trial and reflected in a Juliana opinion could be accepted by other ATL courts without duplicative fact-finding proceedings.

The case could have far-reaching effects on other non-ATL litigation as well. Potential evidence indicating that fossil-fuel companies knew of the mounting climate danger and continued their operations despite this knowledge—and any evidence that they in fact tried to obfuscate the climate danger in various fora³³⁹—could affect pending investigations launched by state attorneys general in New York and California that probe potential violations of securities laws.³⁴⁰ Moreover, the Massachusetts Attorney General recently sued ExxonMobil, alleging violations of state consumer protection law.³⁴¹ Possible evidence of fossil-fuel industry collusion with the government could spur new criminal investigations on the state level, even at the federal level, and perhaps in other nations as well. As Denis Binder has explained, “Criminal liability has become a global reality,” particularly in response to disasters such as oil spills, explosions, and other pollution disasters.³⁴²

The necessity defense requires a showing that the defendants lacked recourse to stop the climate harm using traditional legal avenues³⁴³—a showing that would be advanced through any evidence of government-industry collusion. The defense is being used in the “Delta Five” case now pending in the Washington Court of Appeals. That case arose out of a citizen blockade on train tracks used by oil trains. An amicus party, the Climate Defense Project, submitted a brief in support of the necessity defense, arguing that the citizens’ civil disobedience was a necessary response to the state of Washington’s alleged violation of its constitutional public trust duty to protect the atmosphere and a healthy climate system.³⁴⁴

Beyond its legal ramifications, the Juliana case could spur greater and more widespread climate awareness among the public. At a time when the Trump Administration promotes climate denial,³⁴⁵ the case has galvanized national and international press attention, and the trial is likely to be widely covered by the press. If the plaintiffs present evidence of collusion between the fossil fuel industry and government in the face of knowledge of mounting danger to children, the court of public opinion could react in a way that deters fossil-fuel investors, increases the hostility of consumers to energy companies, and inspires widespread resistance to continued fossil-fuel development worldwide. As columnist Dan Kahle wrote about the case, “When the future speaks for itself, we can’t bear not to listen.”³⁴⁶

C. The Remedy

In their complaint, the Juliana plaintiffs asked for a plan to (1) decarbonize the United States infrastructure at a rate that meets the pace set by the best available science, as currently captured in the Hansen prescription described in Part I³⁴⁷ and (2) a plan to achieve drawdown of excess atmospheric carbon.³⁴⁸ These measures, necessary to restore the planet’s CO₂ levels to below 350 ppm, are characteristic of “structural injunctions” that other courts ordered in various instances of institutional malfeasance or recalcitrance.³⁴⁹ In his denial of the federal defendants’ motion to certify an appeal, Magistrate Coffin emphasized the remedial power of the court, noting that “the court has broad discretion in fashioning equitable relief (if appropriate) in this lawsuit that are manageable and within the judicial role envisioned by Article III of the Constitution.”³⁵⁰ Structural remedies require, at their core, an enforceable, judicially supervised plan. Citing precedents from the prison and civil rights institutional litigation, Magistrate Coffin stated:

Thus, the court, in fashioning equitable relief in this action should the plaintiffs prevail, need not micro manage federal agencies or make policy judgments that the Constitution leaves to the other branches. The court may make findings that define the contours of plaintiffs’ constitutional rights to life and a habitable atmosphere and climate, declare the levels of atmospheric CO₂s which will violate their rights, determine whether certain government actions in the past and now have and are contributing to or causing the constitutional harm to plaintiffs, and direct the federal defendants to prepare and implement a national plan which would stabilize the climate system and remedy the violation of plaintiff’s rights.³⁵¹

Even as discovery and trial proceed, the Trump Administration is likely to approve extraction and development of American fossil fuels as rapidly as necessary. For example, on February 7, 2017, the U.S. Army Corps of Engineers abruptly terminated the environmental review process for the controversial Dakota Access Pipeline and granted the easement, allowing completion of the oil pipeline.³⁵² Because analysts project that continued production from currently operating oil and gas fields around the world will push the planet to 1.5 degrees Celsius over preindustrial temperatures³⁵³—beyond the aspirational limit set by the global Paris climate agreement³⁵⁴—there appears to be an immediate need for so-called “backstop injunctions” to protect the status quo for the duration of the lawsuit. Such an injunction could restrict fossil-fuel development in new areas or limit the expansion of existing projects.³⁵⁵ A court’s role in this regard might be similar to the role of district courts responding to the Trump immigration order, which was challenged as unconstitutional.³⁵⁶ In Darweesh v. Trump,³⁵⁷ for example, the U.S. District Court for the Eastern District of New York issued a nationwide injunction against enforcement of the Trump order only days after its issuance.³⁵⁸

Clearly, the Juliana case has enormous freight to carry. But given the Trump Administration’s declared intentions to ramp up fossil-fuel production and consumption,³⁵⁹ there appears to be little in the way of viable alternatives to force rapid reduction of greenhouse gas pollution.³⁶⁰ Part VII below positions the Juliana case in the context of the atmospheric trust litigation campaign advancing steadily in the United States and abroad.

VII. Atmospheric Trust and PTD Litigation Worldwide

Juliana is part of a series of cases being filed by youth plaintiffs worldwide against governments, collectively referred to as atmospheric trust litigation.³⁶¹ ATL cases seek to apply the fundamental public trust duty of protection to the atmosphere to abate continued damage from GHG pollution and restore climate balance.³⁶² This Part first considers the state litigation. Second, it examines some of the cases abroad.

A. State Atmospheric Trust Litigation

ATL cases must progress through three stages to prove effective. First, the court must recognize its role in upholding the rights of the plaintiffs and rule against the government’s procedural defenses designed to keep the case out of court—defenses such as standing, political question, and displacement.³⁶³ Second, the court must issue declarations of principle providing a guide for government action and a framework for the remedy.³⁶⁴ Third, the court must manage the remedy so that it offers a practical means to enforce the rights of the plaintiffs.³⁶⁵ Although state court ATL decisions are not binding on other states, they can be influential.

1. Overcoming judicial inertia

Public trust cases call on the judiciary to evaluate the performance of other branches of government in fulfilling the fiduciary obligations they owe to the people. As the Hawaii Supreme Court stated in a leading public trust case, “The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”³⁶⁶ In the context of the ATL campaign, the early cases demonstrated that some courts were uncomfortable with a role in the climate crisis, particularly in light of the complex regulatory schemes available to the agencies to regulate greenhouse gas pollution. As a result, several earlier decisions were dismissed on displacement, preemption, or political question grounds.³⁶⁷ As the Alec L. court claimed, agencies are allegedly “better equipped” than courts to handle GHG pollution.³⁶⁸

These early decisions placed unwarranted confidence in the political branches of government to prevent runaway planetary heating.³⁶⁹ They succumbed—as did several notable climate tort cases before them—to the so-called judicial “nihilism” identified by Professor Douglas Kysar: “[d]enying [their] own expansive power, [these courts] cowered before catastrophe.”³⁷⁰ Perhaps spurred by growing evidence of the severity of the climate crisis and the government’s clear lack of appropriate response, courts have begun to discard the displacement, preemption, and political question arguments.

In Kanuk ex rel. Kanuk v. State, Department of Natural Resources³⁷¹ for example, the Alaska Supreme Court decided that the political question did not foreclose plaintiff’s suit, although it rejected the particular declaratory relief sought by the plaintiffs, finding that it would not be dispositive.³⁷² In Oregon, a trial judge dismissed the plaintiffs’ suit because the court thought the question was more appropriate for the legislative branch,³⁷³ but that decision was ultimately reversed on appeal.³⁷⁴ The Oregon Court of Appeals held that the “plaintiffs are entitled to a judicial declaration of whether, as they allege, the atmosphere ‘is a trust resource’ that ‘the State of Oregon, as a trustee, has a fiduciary obligation to protect [from] the impacts of climate change.’”³⁷⁵ In a summary of ATL cases, Professor Abate concluded that “several state courts have embraced the concept of ATL as a potential strategy to address climate change regulation in the courts, and it is rapidly gaining support.”³⁷⁶ Although courts have started to accept a judicial role in addressing climate change, they must go further and address fundamental rights as well.

2. Judicial recognition of ATL’s foundational legal principles

Beyond recognizing a role for the judiciary, the courts must declare rights to climate stability and underscore the constitutional nature of those rights. Even early cases made considerable headway on both scores. For instance, in 2012, the court in Bonser-Lain v. Texas Commission on Environmental Quality³⁷⁷ upheld the Texas Commission on Environmental Quality’s denial of the plaintiffs’ rulemaking petition, but not without addressing several of the agency’s incorrect assumptions about the case.³⁷⁸ The court explicitly discarded the agency’s determination that the PTD applied only to water, stating that “the [PTD] includes all natural resources of the State,” and the federal Clean Air Act provides “a floor, not a ceiling, for the protection of air quality.”³⁷⁹

In a 2015 case, the New Mexico Court of Appeals determined that the atmosphere was a trust asset; however, the court upheld dismissal of the case on grounds that existing statutes provided the appropriate framework for relief.³⁸⁰ In Butler ex rel. Peshlakai v. Brewer,³⁸¹ the Arizona Court of Appeals stated: “[W]e assume without deciding that the atmosphere is a part of the public trust subject to the [PTD].”³⁸² In Oregon, a lower court rejected air as part of the public trust, but amicus law professors roundly criticized the decision, and the case is now on appeal.³⁸³ In Kanuk the Alaska Supreme Court stated that the plaintiffs made a “good case” that the atmosphere is a public trust asset, but the court declined to issue declaratory relief to that effect, on prudential grounds.³⁸⁴ The Alaska court noted that, even absent a declaration that air is a public trust asset, the trust could include climate change because of its “detrimental impact on already-recognized public trust resources such as water, shorelines, wildlife, and fish.”³⁸⁵

In Washington’s ATL case, Foster v. Washington Department of Ecology, the court expressly ruled that the public trust includes air and atmosphere.³⁸⁶ Judge Hill stated, “The navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that GHG emissions do not affect navigable waters, is nonsensical.”³⁸⁷ The court also decided that the public trust held constitutional force, both as a reserved right and as a right corollary to the state’s ownership of submerged lands under the equal footing doctrine.³⁸⁸ The court declared,

[T]he State has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people of the State. . . . If ever there were a time to recognize through action this right to preservation of a healthful and pleasant atmosphere, the time is now.³⁸⁹
Climate change is not a far off risk. It is happening now globally and the impacts are worse than previously predicted, and are forecast to worsen . . . . If we delay action by even a few years, the rate of reduction needed to stabilize the global climate would be beyond anything achieved historically.

Id. at 670 (alteration in original) (quoting Wash. Dep’t of Ecology, Washington Greenhouse Gas Emission Reduction Limits vi, 18 (2014)). The court recognized that the climate protection duty is also grounded in the Clean Air Act. See id. at 676 n.173 (“This mandatory duty must be understood in the context not just of the Clean Air Act itself but in recognition of the Washington State Constitution and the Public Trust Doctrine.”).

3. Judicial management of the remedy

When courts turn to managing the remedy in stage three of ATL cases, their role is no different than in other public trust cases: courts do not exercise direct management over the trust res, but instead aim to ensure that the political branches fulfill their trust obligation to avoid destruction or substantial impairment of the res. A critical difference arises, however, with respect to the urgency with which government must undertake remedial measures. In a tipping-point world, effective relief depends on close judicial supervision to ensure implementation of effective climate recovery plans within applicable time frames. The past approach of deferring to the agencies no will longer suffice in the face of an unforgiving climate reality, coupled with demonstrated agency recalcitrance to take action. Close supervision by the courts involves two tasks: (1) requiring a plan that includes measurable steps and (2) imposing continued oversight to ensure proper execution. Judicial oversight of remedies was characteristic of desegregation, treaty rights, land use, prison reform, and educational funding cases.³⁹⁰

Because most states already have some air regulation, and many have climate goals, the problem faced by some ATL courts is not the wholesale lack of agency authority to address climate goals, but instead a lack of effective action to match the scale of what scientists now say is needed to avert irrevocable harm. In some states, the mere existence of a statutory or regulatory scheme for GHG reduction masks serious neglect by the state agencies to implement the charge—not unlike the federal government’s longstanding failure to undertake comprehensive GHG regulation under the Clean Air Act.³⁹¹ Oregon, for example, set statewide climate targets in 2007, but they were non-binding, never implemented, and are now outdated.³⁹²

To provide an effective remedy, a court must sometimes undertake the challenging task of comparing the regulatory progress underway with the progress needed as called for by expert testimony (or, as in the case of Washington, as informed by reports issued by the same agency that the youth have sued). Typically, government defendants allege that their regulatory processes will address the problem, and early ATL courts deferred to those processes, even though the plaintiffs alleged that the climate response was breathtakingly insufficient. The Massachusetts and Washington ATL cases, however, serve as path-breaking examples of courts addressing deficiencies of regulatory action, with the Washington case taking notice of the contemporaneous Juliana decision.³⁹³

a. ATL in Massachusetts: Kain v. Massachusetts Department of Environmental Protection

The Massachusetts ATL case started as a petition for rulemaking to the state’s environmental agency in 2012, requesting the state agency to prepare a plan to reduce carbon emissions, as required by the Massachusetts’s Global Warming Solutions Act.³⁹⁴ In a dystopian coincidence, Hurricane Sandy, one of the largest storms ever to hit the East Coast, delayed the youth petitioners in filing their petition.³⁹⁵ Although the Massachusetts Department of Environmental Protection (DEP) denied the petition in June 2013, citing ongoing and upcoming efforts to address carbon emissions, the DEP’s decision agreed with the petitioners that it was the state’s responsibility “to protect the integrity of Massachusetts’s atmospheric resource, climate system, and shorelines by adequately protecting our atmosphere.”³⁹⁶ However, the DEP’s decision also maintained that state positive law supplanted the state’s public trust doctrine.³⁹⁷ In response, the petitioners filed an appeal with the district court.³⁹⁸

The district court affirmed DEP’s denial in 2015, and the youth plaintiffs appealed.³⁹⁹ Just six months later, the Massachusetts Supreme Judicial Court decided to take the case on direct review, skipping the lower appellate court.⁴⁰⁰ In May 2016, the Massachusetts court handed a resounding victory to the youth, deciding that the DEP failed to satisfy its legal obligation to reduce the state’s GHG emissions pursuant to legislative goals.⁴⁰¹ The state’s existing schemes, it determined, “fall short.”⁴⁰² The court ordered the agency to “promulgate regulations that address multiple sources or categories of sources of emissions, impose a limit on emissions that may be released . . . and establish limits that decline on an annual basis.”⁴⁰³

The Massachusetts high court did not order the lower court to retain jurisdiction over the remedy, but the decision prompted a concerted and direct response from the state’s political branches.⁴⁰⁴ On September 2016, Governor Charles Baker issued Executive Order No. 569: “Establishing an Integrated Climate Change Strategy for the Commonwealth.”⁴⁰⁵ The order required the DEP to promulgate a regulatory scheme by August 11, 2017, that would establish annual reductions in the state’s GHG emissions.⁴⁰⁶

Although the outcome of Kain is a promising sign of progress, tangible emissions reductions do not result from a signature on an executive order. The importance of continued judicial oversight was evident in the Washington ATL case described below.

b. ATL in Washington: Foster v. Washington Department of Ecology

In the Washington ATL case, the Department of Ecology (DOE) denied the youth plaintiffs’ petition for science-based rulemaking, and the plaintiffs appealed to the Washington Superior Court. In Foster v. Washington Department of Ecology, Judge Hollis Hill issued her first opinion in June 2015, ordering DOE to reconsider its denial of the youths’ petition.⁴⁰⁷ While DOE was reconsidering its decision, the plaintiffs met with Governor Jay Inslee. After the meeting, Governor Inslee issued a directive to the DOE to engage in the science-based rulemaking the youths sought.⁴⁰⁸ Subsequently, the DOE again denied the youths’ petition on the ground that the executive directive initiated the rulemaking that the plaintiffs requested.⁴⁰⁹

The youths appealed again. In the ensuing decision, Judge Hill upheld the DOE’s denial of the rulemaking petition, conceding that the court lacked the power to dictate how the DOE can fulfill its duty to promulgate directives, but not without declaring that the DOE is still statutorily and constitutionally compelled to fulfill its trust duty to protect the atmosphere.⁴¹⁰ The court’s approach to interpreting the plaintiffs’ public trust rights was undoubtedly influenced by the dilatory climate response from the other branches of government. Judge Hill had to look no further than the DOE’s own December 2014 report to find that the DOE itself acknowledged that the amount of emissions reduction required by Washington law was wholly inadequate.⁴¹¹ Judge Hill consequently found that the existing requirements “cannot achieve the GHG reductions necessary . . . to ensure the survival of an environment in which Petitioners can grow to adulthood safely.”⁴¹²

Three months after the court’s dismissal, DOE dropped its rulemaking procedure, leading to another appeal. This time Judge Hill responded by stating:

This is an extraordinary circumstance that we are facing here. . . . The reason I’m doing this is because this is an urgent situation. This is not a situation [in which] these children can wait. . . . Polar bears can’t wait, the people of Bangladesh can’t wait. I don’t have jurisdiction over their needs in this matter, but I do have jurisdiction in this court, and for that reason, I’m taking this action.⁴¹³

Judge Hill ordered DOE to promulgate an emissions reduction rule by the end of 2016 and to submit recommendations to the legislature concerning science-based reductions for the 2017 legislative session.⁴¹⁴ She also directed DOE to consult with the plaintiffs before making those legislative recommendations.⁴¹⁵

Governor Inslee appealed the decision, rolling out a proposed clean air rule supported by the fossil-fuel industry that fell short of the court’s orders.⁴¹⁶ The plaintiffs responded with a motion for contempt of court.⁴¹⁷ Although Judge Hill denied the contempt motion, she did grant the plaintiffs’ request to amend the original complaint to include a constitutional climate rights claim “due to the emergent need for coordinated science based action by the State of Washington to address climate change before efforts to do so are too costly and too late.”⁴¹⁸ Judge Hill, citing the Juliana decision, decided that

where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.⁴¹⁹

Judge Hill made clear that the youths would have their day in court to make their claims. Perhaps more importantly, Judge Hill embraced a judicial role because of the magnitude of the issue: “Because this court is fully advised in the matter thus far it retains jurisdiction to implement this ruling and proceed as expeditiously as possible.”⁴²⁰ Thus, Foster became the first ATL action to progress to the remedial stage of litigation.⁴²¹

In addition to the cases mentioned above, a decision by the Colorado Court of Appeals in March 2017 handed a victory to youth plaintiffs that challenged hydraulic fracking practices.⁴²² Ongoing state ATL actions in Maine, Oregon, and Pennsylvania have potential for positive outcomes as well.⁴²³ As mentioned earlier, although these decisions will not be binding on other states, they may prove influential elsewhere. Meanwhile, Our Children’s Trust is formulating additional actions in Hawaii, North Carolina, Alaska, New Mexico, Florida, and other states.⁴²⁴

B. Worldwide Atomspheric Trust Litigation

The ATL campaign draws upon the public trust principle in large part because it is a universal principle of ecological obligation, as the doctrine has developed both in the United States and abroad.⁴²⁵ The idea is that, in the wake of a failure of international treaty negotiations, domestic courts across the world are positioned to enforce climate obligations from a shared framework of fiduciary responsibility toward the common atmosphere.⁴²⁶ ATL suits seek to accomplish, through decentralized domestic litigation in other countries, what has thus far eluded the centralized, international diplomatic treaty-making process. The ATL campaign characterizes all nations as co-trustees of the atmosphere, each holding a duty towards both their own citizens and their co-trustees of protecting the shared atmospheric trust.⁴²⁷ If the ATL approach succeeds, domestic actions would force science-based CO₂ reduction and create tangible backing to the principles declared in the United Nations Framework Convention on Climate Change (UNFCCC), agreed to in 1992 by 192 nations of the world.⁴²⁸

Long before the ATL global litigation, many leading cases established the public trust as a recognized principle in legal systems throughout the world. In a path-breaking 1993 decision from the Philippines, Oposa v. Factoran, the Philippines Supreme Court declared an inherent right to ecological balance “exist[ing] from the inception of humankind.”⁴²⁹ Children and their parents brought the lawsuit to prevent the federal government from allowing private logging corporations to cut down the last remaining old-growth forests in the country.⁴³⁰ Invoking the trust to enjoin any further logging, the Court declared:

Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.

[T]he right to a balanced and healthful ecology . . . belongs to a different category of rights [than civil and political rights] altogether for it concerns nothing less than self-preservation and self-perpetuation . . . the advancement of which may even be said to predate all governments and constitutions.

As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned . . . it is because of the well-founded fear of its framers that unless the right to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself . . . the day would not be too far when all else would be lost not only for the present generation, but also for those to come—generations which stand to inherit nothing but parched earth incapable of sustaining life.⁴³¹

Indeed, the Oposa suit, brought on behalf of children, provided the template for suits in the atmospheric trust context nearly two decades later. The court in Juliana cited some of the reasoning in Oposa, identifying as a basis for its decision the declaration that future generations have an inherent constitutional right to a “balanced and healthy ecology.”⁴³²

A subsequent case decided by the Philippines Supreme Court invoked the PTD in issuing a comprehensive injunction requiring the cleanup of pollution in Manila Bay.⁴³³ That case informed the remedy sought in the atmospheric trust cases, as the Philippines Supreme Court retained jurisdiction to supervise a number of agencies in following a comprehensive plan to clean up the bay.⁴³⁴

International recognition of the PTD includes the India Supreme Court’s 1997 landmark decision enjoining a resort development on forest land adjacent to the Beas River.⁴³⁵ The court announced that “[u]nlike our laws, nature cannot be changed by legislative fiat; [natural law is] imposed on us by the natural world. An understanding of the laws of nature must therefore inform all of our social institutions.”⁴³⁶ Other courts affirming the PTD include those in Uganda, Kenya, Indonesia, South Africa, and Canada;⁴³⁷ many jurisdictions have located the PTD in their constitutions’ promise of a “right to life.”⁴³⁸

Several of these world-wide PTD cases reflect an awakening of the judiciary as the key institution to address ecological crises. PTD actions abroad have in fact produced some resounding victories, including in the climate-change context. The most prominent recent example was a 2015 Netherlands district court decision, which agreed with environmentalists that the country had to take action to reduce greenhouse gas emissions by 2020 to levels at least 25% below those of 1990.⁴³⁹ Since the Dutch government already agreed to an emissions reduction of 14% to 17%, the case was the first time a court intervened to pronounce the government’s remedial efforts inadequate in light of the best available science.⁴⁴⁰ Moved by the severity and scope of the climate problem, the government’s knowledge and the foreseeability of the damage, and the risk that hazardous changes in climate will occur, the court decided that the government breached its duty of care and ordered the government to use its authorities to further reduce GHG emissions.⁴⁴¹ The decision came at a crucial time, offering a “well-spring of inspiration” to climate litigants worldwide.⁴⁴²

The Dutch court cited the quarter-century old 1992 U.N. Climate Treaty as evidence that the Dutch government, in signing the treaty, had accepted responsibility to reduce emissions as much as necessary to avert climate catastrophe.⁴⁴³ The three-judge panel rejected the government’s claim that judicial action was unwarranted because the solution to the global climate problem could not be resolved solely by Dutch efforts. But since the country’s per-capita emissions are among of the highest in the world, any reduction of emissions will contribute to the prevention of dangerous climate change.⁴⁴⁴ Moreover, the court ruled that there was sufficient evidence to assume a causal link between the Dutch greenhouse gas emissions, global climate change, and the effects (now and in the future) on the Dutch climate.⁴⁴⁵ The court also rejected the government’s claim that judicial intervention was an unwarranted intrusion on the political branches of government.⁴⁴⁶ The decision was the first to invoke human rights as a basis to protect individuals against climate change.⁴⁴⁷ In many significant respects, the Netherlands decision responded to the same arguments faced by the Juliana court and the state courts in ATL cases.

Other international ATL cases have also met with success. In Pakistan, a farmer brought a case alleging that climate inaction (both with respect to emissions reduction and mitigation) violated the fundamental constitutional rights to life and dignity and the public trust doctrine.⁴⁴⁸ Underscoring these rights, the Lahore High Court fashioned a classic structural injunction remedy, creating an administrative judicial apparatus to supervise the undertaking of climate actions, ordering the establishment of a Climate Change Commission comprised of high cabinet officials.⁴⁴⁹ Directing the commission to carry out the climate measures forged through a framework formulated but never implemented by the government, the court’s order contemplated ongoing reports and judicial supervision.⁴⁵⁰

Later, in the spring of 2016, a seven-year-old girl filed a separate lawsuit in the Pakistan Supreme Court. She asserted that the government, through the exploitation and promotion of fossil fuels, had violated the PTD and the youngest generation’s constitutional rights to life, liberty, property, human dignity, and equal protection of the law.⁴⁵¹ A few short months later, reversing a registrar’s earlier rejection of the constitution petition, the court ruled that the youth plaintiff’s climate change lawsuit could proceed to the merits of the case.⁴⁵²

In Ukraine, youth secured a swift partial ATL victory when the court ordered the government to prepare an assessment of the country’s progress toward realizing the reduction goals set by the Kyoto Protocol.⁴⁵³ Other atmospheric trust petitions and lawsuits, tailored to the laws and circumstances of the particular country, are pending. For example, in India, a nine-year old filed a climate change petition against her government in March 2017, asserting duties under the public trust doctrine, intergenerational equity, and India’s constitution.⁴⁵⁴ She asked the National Green Tribunal to order the government of India to prepare a carbon budget and national climate recovery plan designed to reduce India’s share of the global atmospheric CO₂ to below 350 ppm by 2100.⁴⁵⁵ The case is before the court as of this writing.

In the Philippines, youth filed a broad petition asking the courts to reconfigure the road system to allow non-fossil fuel transportation.⁴⁵⁶ In Norway, citizens sued to prevent the government from allowing oil drilling in the Arctic Barents Sea, asserting rights declared in a constitutional amendment that was passed just two years before.⁴⁵⁷ They also asserted a public trust right to a healthful environment “that will be safeguarded for future generations as well.”⁴⁵⁸ Actions are planned in other countries including Canada, France, Australia, England, and Belgium.⁴⁵⁹ And, in September 2017, in the wake of devastating wildfires that ravaged Portugal, a group of Portuguese schoolchildren made a global crowd-funding bid to support a youth lawsuit against all European nations in the European Court of Human Rights to force carbon reduction.⁴⁶⁰ The strategy, building on the successes of atmospheric trust litigation in the United States and elsewhere,⁴⁶¹ would be the first time in which multiple governments are sued at once in the same proceeding. Clearly, the pace of ATL litigation abroad is quickening.

Conclusion

The Juliana decision was a path-breaking one, finding the right to a stable climate system protected by constitutional due process, including the PTD.⁴⁶² Key to the decision was a determination lodging the right to a stable climate system in the due process clause of the Constitution.⁴⁶³ Such a fundamental right imposes a standard of strict judicial scrutiny concerning the government’s fossil fuel policies that are the subject of the youths’ systemic challenge.⁴⁶⁴ Deciding that a fundamental right to a healthy atmosphere existed, given the stakes involved and the growing precedent in support, seemed no great reach from previously recognized fundamental rights to privacy, procreation, marriage, and interstate travel.⁴⁶⁵

The Juliana court’s determination that the Constitution proscribed the government’s interference with the youths’ PTD rights was also in keeping with considerable international precedent.⁴⁶⁶ The court refrained from deciding whether the atmosphere was a public trust resource—although it cited sufficient authority to do so⁴⁶⁷—but Judge Aiken did rule that the close relationship between atmospheric GHG pollution and adverse effects on trust resources like oceans and navigable waters could produce a PTD violation.⁴⁶⁸ In short, the court regarded the atmosphere as unquestionably ancillary to traditional trust resources like the ocean and the territorial seas.

The Juliana approach paralleled other courts’ protection of corollary resources and public access to them. For example, courts have secured public access to dry sand beaches, finding such access necessary to full enjoyment of the traditional public trust in tidelands.⁴⁶⁹ In the same vein, courts have protected non-navigable tributaries to navigable waters held in trust and have extended trust protection to groundwater with a hydrological connection to surface trust waters.⁴⁷⁰

Judge Aiken closed her opinion by observing that federal courts “have been . . . overly deferential in the area of environmental law, and the world has suffered for it.”⁴⁷¹ She paid tribute to Judge Alfred Goodwin’s decision in the Oregon beach case,⁴⁷² which found a public right to access the beach based on customary rights,⁴⁷³ Judge Aiken stated that the Juliana case had “strong echoes” of the public claims affirmed in that landmark case.⁴⁷⁴ At a time in which the U.S. Supreme Court seems prepared to reconsider its doctrine of judicial deference to administrative decision making,⁴⁷⁵ the Juliana decision provided path-breaking reasoning for the imposition of a judicial check on the political branches—at least where the survival interests of young people and future generations are at stake.

It should not surprise students of American legal history that the climate crisis worsened steadily for decades and entered its “eleventh hour” before a court declared a due process liberty and public trust right to something so fundamental as a stable climate system—the necessity of which will become only more obvious as climate chaos takes its toll on human survival and civilization. Rights today widely recognized as fundamental—like First Amendment rights to religion and speech—were not commonly recognized by the federal courts until more than a century-and-a-half after the ratification of the First Amendment.⁴⁷⁶ As Justice Kennedy acknowledged, sometimes fundamental liberty rights are “not always see[n] . . . in our own times . . . ,” but the Framers “did not presume to know the extent of freedom in its all its dimensions, and so they entrusted to future generations a charter of protecting the right of all persons to enjoy liberty as we learn its meaning.”⁴⁷⁷

The right to a stable climate system, like the right to marry and the right to racial non-discrimination, if not originally among those rights the Framers thought were constitutionally protected, is certainly “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.”⁴⁷⁸ And too, a stable climate system remains the linchpin to the full ecological endowment secured by the public trust principle.

In addition to its effect in other courts, decisions like Juliana can serve broad educative functions in society, inspiring waves of change beyond the courthouse doors, similar to the Supreme Court’s historic decision in Brown v. Board of Education,⁴⁷⁹ ruling that racial discrimination in public education is unconstitutional. Although it took a decade, Brown led to the Civil Rights Act of 1964⁴⁸⁰ and the Voting Rights of 1965,⁴⁸¹ which effectively ended U.S. de jure racial segregation that had persisted since before the nation’s inception. Someday, Juliana may be seen in the same broad educative light as Brown. At the moment, however, the Juliana decision, resting as it does on constitutional rights, seems to represent a judicial bulwark against a reckless ramp-up of fossil-fuel production in the United States that could push the planet past irreversible tipping points.

Perhaps the most important aspect of the Juliana decision is that it took a courageous and historic step into what Professor Kysar has identified as a gulf between normative law and climate catastrophe,⁴⁸² turning a judicial tide of other climate cases—cases that evaded the calls of justice through procedural maneuvers—to address the climate reality unflinchingly and to accept the institutional “grace of responsibility” with exacting jurisprudential care and considerable doctrinal mooring.⁴⁸³

In this vein, the Juliana opinion “demonstrate[s] the more dynamic, adaptive, and restless forms of jurisdictional assertion required in an age of unlimited harm.”⁴⁸⁴ Against a reality where “[t]oday’s political failures may foreclose possible natural worlds,” threatening damage that is “irreversible on any conceivable human timescale,” Juliana paves the way for courts faced with similar suits to require the political branches to take remedial action before the crisis spirals completely out of humanity’s control.⁴⁸⁵ These cases are, indeed, the “jurisdictional struggles that define the boundary between legal order and catastrophic overturning.”⁴⁸⁶ Such judicial intervention across the globe cannot happen a moment too soon.⁴⁸⁷

“No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine

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