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Greenlighting Kids’ Climate Suit, Ore. Judge Cites Ancient Law

Law360 Nov. 10, 2016
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Greenlighting Kids’ Climate Suit, Ore. Judge Cites Ancient Law

An Oregon federal judge on Thursday refused to throw out a suit accusing the federal government of failing to protect future generations from the threats of climate change, saying the government’s focus on specific laws was a myopic view of a suit over fundamental rights protected by more ancient law.

U.S. District Judge Ann Aiken adopted the recommendation set out by U.S. Magistrate Judge Thomas M. Coffin in April, in which he suggested the court hear the case brought by 21 plaintiffs ranging in age from 8 to 19, along with climate change advocates including former NASA climate scientist James Hansen. They claimed their constitutional rights, and those of future generations, had been trampled by the government’s complicity in the proliferation of fossil fuels, despite knowledge of the climate change consequences.

“This action is of a different order than the typical environmental case,” Judge Aiken wrote. “It alleges that defendants’ actions and inactions — whether or not they violate any specific statutory duty — have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

The federal government and industry groups intervening on its behalf—the American Petroleum Institute and American Fuel & Petrochemical Manufacturers — had urged the court last November to dismiss the suit, saying the plaintiffs lacked standing to bring the suit, didn’t raise any constitutional claims and improperly asked the court to rule on political issues.

Judge Coffin disagreed with that in April, and Judge Aiken cemented his recommendation Thursday in a 50-page opinion concluded by a forceful defense of the role of a strong and independent judiciary in protecting the environment.

“Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it,” Judge Aiken wrote.

Judge Aiken analyzed the merit of the claim that the government had violated the public trust doctrine, which she summarized as “the fundamental understanding that no government can legitimately abdicate its core sovereign powers.” She wrote that the theory is rooted in sixth-century Roman law, in the Institutes of Justinian, and made its way into U.S. law through English common law.

The fundamental U.S. Supreme Court decision on the theory, she wrote, was Illinois Central Railroad Co. v. Illinois, an 1892 ruling in which the high court told the Illinois Legislature that it couldn’t give submerged lands beneath the harbor of Chicago to the railroad.

“The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them … than it can abdicate its police powers in the administration of government and the preservation of the peace,” Aiken quoted from the case.

She said the state has a fiduciary duty to its citizens to ensure that future citizens have the right to enjoy the benefits from the trust, and that those trust rights “both predated the Constitution and are secured by it.”

Judge Aiken also noted that she need not rule on whether the atmosphere should be considered part of the public trust just yet, because the plaintiffs also alleged public trust violations that related to waters, which are considered part of the public trust by more settled law.

In a nearly page-long footnote, however, she said the opinion should not be construed to implicate that the air is not part of the public trust, referring to principles, precedent and reasoning that support the idea that it is.

She rejected arguments that the public trust doctrine only applies to states and not the federal government, and that the public trust doctrine had been “displaced” with more specific statutes.

Aiken’s ruling also dealt with whether the court should step into the politically charged issue, applying the test set out by the U.S. Supreme Court in Baker v. Carr, to assess whether hearing the case would impermissibly call for a ruling on a political question. She agreed that climate change was a politically charged issue.

“But a case does not present a political question merely because it ‘raises an issue of great importance to the political branches.’” she wrote. “Instead, dismissal on political question grounds is appropriate only if one of the Baker considerations is ‘inextricable’ from the case.”

She noted that the industry groups correctly argued that the U.S. Constitution gives the legislative and executive branches authority over commerce, foreign relations, national defense and federal lands, but said abstaining from the case just because it related those issues would allow “the exception to swallow the rule.”

“The question is not whether a case implicates issues that appear in the portions of the Constitution allocating power to the legislative and executive branches — such a test would, by definition, shield nearly all legislative and executive action from legal challenge,” she wrote.

Judge Aiken did agree the case flirts with problems related to the separation of powers, but said that those issues would be more properly addressed at the time a remedy is crafted, not when deciding whether to hear the case.

“Should plaintiffs prevail on the merits, this court would no doubt be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy,” she wrote. “The separation of powers might, for example, permit the court to direct defendants to ameliorate plaintiffs’ injuries but limit its ability to specify precisely how to do so.”

In her conclusion, she said the arguments raised by the government and the industry groups showed a failure to see the big picture.

“A deep resistance to change runs through defendants’ and intervenors’ arguments for dismissal: They contend a decision recognizing plaintiffs’ standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to [a] climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal.”

She said the arguments of the government and the industry groups echoed those before the Oregon Supreme Court in 1969, when that court affirmed the state’s beaches were public property and rejected a property owner’s objection that the state had  illegally “dredge[d] up an inapplicable, ancient English doctrine” to make them so.

“The Oregon Supreme Court was not persuaded by this call to judicial conservatism,” she wrote. “Because of the application of an ancient doctrine, Oregon‘s beaches remain open to the public now and forever.”

A spokesman for the American Petroleum institute said Thursday the organization is reviewing the ruling and offered no further comment. A spokesman for the U.S. Department of Justice declined to comment.

Julia A. Olson, a Wild Earth Advocates attorney bringing the suit, told Law360 over the phone that the opinion was the most “beautiful” ruling she’s ever read.

“She’s looking at a case that is literally about survival of young people and future generations, and she makes clear that her role as the third branch of government is critical at a time when, as the case alleges, the government is putting young people in grave danger by continuing to worsen the climate situation,” she said.

Olson added that as Republicans take the reins of the White House and Congress next year, it’s “critical” that the courts step in and act as a check.

The plaintiffs are represented by Julia A. Olson of Wild Earth Advocates, Joseph W. Cotchett, Philip L. Gregory and Paul N. McCloskey of Cotchett Pitre & McCarthy LLP and Daniel M. Galpern.

The federal government is represented by assistant U.S. Attorney General John C. Cruden and Sean C. Duffy of the U.S. Department of Justice.

The American Petroleum Institute and American Fuel & Petrochemical Manufacturers are represented by C. Marie Eckert and Suzanne C. Lacampagne of Miller Nash Graham & Dunn LLP and Roger R. Martella Jr., Quin M. Sorenson and Benjamin E. Tannen of Sidley Austin LLP.

The case is Juliana et al. v. USA et al., case number 6:15-cv-01517 in the U.S. District Court for the District of Oregon.

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