By Karen Savage

The Ninth Circuit Court of Appeals dismissed the landmark youth-led climate lawsuit against the United States government on Friday, ruling the young plaintiffs did not have standing to sue.

While the ruling is a victory for the Trump administration, which fought bitterly to have the case, Juliana v. United States, dismissed, the court also wrote the young plaintiffs “have made a compelling case that action is needed.”  The judges, however, said climate change cannot be addressed through the judicial branch of government.

“Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Judge Andrew D. Hurwitz wrote in the three-judge panel’s split decision.

Our Children’s Trust, the legal organization supporting the young plaintiffs, said it would appeal the verdict to the entire Ninth Circuit.

The lawsuit was filed in 2015 by 21 young plaintiffs from across the country who allege that by encouraging and promoting fossil fuel development, the federal government is contributing to climate change, is violating the public trust doctrine and is denying their constitutional rights to life, liberty and property. When the case was initially sent to trial by a U.S. District Court judge in 2016, it became the first case in which a U.S. court recognized the constitutional right to a safe climate.

The Ninth Circuit panel, however, held it was beyond the court’s power to “design, supervise, or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches,” the majority wrote.

In a dissenting opinion, Judge Josephine L. Staton decried the inaction of both the federal government and her judicial colleagues.

“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses,” Staton wrote.

“Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.”

Our Children’s Trust attorneys hope the entire Ninth Circuit will take up their appeal. A majority of the circuit’s 29 judges would have to agree to hear the appeal, which would then be considered by a panel of 11 judges.

“​Despite finding the government was actively contributing to climate change, and despite the fact the court found these youth plaintiffs submitted evidence of concrete and particularized injuries, and despite the fact that the youth plaintiffs presented sufficient evidence to show federal policies were a substantial factor in causing plaintiffs’ constitutional injuries, a majority of the panel concluded there was nothing federal courts could do to address these constitutional violations,” said Philip Gregory, co-council for the young plaintiffs.”

The suit had survived numerous attempts by the government to dismiss the case since it was originally filed. The young plaintiffs were asking for a science-based program to reduce carbon emissions and protect the climate for future generations.

While dismissing the case on legal grounds, the court wrote that the evidence presented left no doubt that by promoting a system based on fossil fuels, the U.S. government’s “contribution to climate change is not simply a result of inaction.”

In the ruling, Hurwitz referred to the popular mid-1960s song warning that we were “on the eve of destruction.”   

“The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer,” Hurwitz wrote.

“A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”

The case has been likened to previous U.S. Supreme Court cases, including the Brown v. Board of Education decision and the Brown v. Plata decision, which reversed long-standing legal positions on fundamental rights.

Staton drew a comparison in her dissent. She  acknowledged that “unless there is a constitutional violation, courts should allow the democratic and political processes to perform their functions.” But she also said the injustice of climate change is very different from other social injustices that can eventually be corrected.  

 “Plaintiffs’ claims are based on science, specifically, an impending point of no return,” Staton wrote. 

“If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”