Publication Date

2018

Document Type

Article

Abstract

This article, based on a live discussion among a panel of national experts, dissects the landmark federal climate lawsuit, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). Juliana is the flagship case in a series of legal actions brought by youth plaintiffs challenging government failures to regulate to prevent climate change. However, few have come as far as Juliana, which has so far survived motions to dismiss from both the government and fossil fuels industry, a motion for interlocutory appeal to the Ninth Circuit to dismiss the case, and even a rare petition for writ of mandamus by the Trump Administration — all attempting to halt the case before it even reaches trial. Bill McKibben, the internationally renowned environmentalist, has called it “the most important lawsuit on the planet right now.”

The case is novel not only because it takes on climate change, and not even because the primary advocates are children — direct representatives of the future generations whose rights are allegedly being foreclosed by the governance the suit challenges. More importantly, it raises several novel legal claims, involving issues of both common and constitutional law. In one line of argument, the plaintiffs apply the common law public trust doctrine, an old theory of sovereign obligation over certain common pool resources, in a new way — obligating federal action to protect the atmospheric commons. The other line of argument relies on a substantive due process theory of constitutional obligation, alleging that the federal government must act to protect the plaintiffs’ fundamental right to a stable climate.

These claims have generated both interest and controversy among legal scholars. Opponents worry about their departure from established common law norms, given that the public trust doctrine is mostly applied to state action impacting water resources, rather than federal action involving air resources. Some worry about the practical impacts of the advocacy strategy and the workability of the requested remedy — which would make it the responsibility of courts to order and oversee ambitious legislative and executive activity. For others, the judicial remedy raises serious concerns about the horizontal separation of powers and the limits of sovereign authority. Others worry about the implications of reinvigorating judicial oversight of substantive due process, and the limits of unenumerated fundamental rights. Still others worry about the implications of not pushing these boundaries in the face of the looming harms associated with climate change.

The article distills a scholarly conversation by law professors Erin Ryan, Mary Wood, Jim Huffman, Rick Frank, and Irma Russel, who joined to help unpack the various legal issues raised by the case (participating remotely, to avoid generating additional greenhouse emissions through air travel). A live recording of the discussion accompanies the published article online, made available to assist further classroom exploration of these issues.

Publication Title

Florida State University Law Review Online

Volume

46

Issue

1

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