By Matthew D. Batista

Little substantive action is being taken in the United States to combat the grave challenges that climate change is clearly presenting. This summer, two massive Northern California wildfires burned, raining ash and spreading smoke as far as New York. The Carr fire burned over 220,000 acres in Redding, CA, and the Mendocino Complex fire burned over 410,000 acres across Colusa, Lake, and Mendocino counties. California is not alone in dealing with historic heat and wildfires: across the United States in the last 30 days, there has been over 2,000 new daily record high temperatures and over 5,000 new daily highest minimum temperatures established. Internationally, wildfires in Greece have killed at least 91 people, and Japan recorded its highest ever temperature on July 23, 2018 at 106 degrees. Sweden is experiencing the worst drought on record, with wildfires burning into the Arctic Circle.

These serious problems have led to a rise in climate and environmental litigation in U.S. courts. October will see a novel case heard in U.S. District Court for the District of Oregon, Juliana v. United States.

In the past, most environmental claims have  been made against administrative agencies like the Environmental Protection Agency and Department of Interior, challenging their respective regulations. However, the Juliana plaintiffs make a different claim. Their complaint, originally filed in 2015 against the Obama administration, makes a constitutional argument against the U.S. regarding climate change.

The 21 plaintiffs were all minors at the time of filing, as young people are the most likely to suffer the effects of environmental decline decades from now. They assert Fifth Amendment claims of due process and equal protection under the law, as well as Ninth Amendment rights claims (the Ninth Amendment infers additional rights not expressly stated in the Constitution). They also invoke the public trust doctrine, which requires the government to protect the public’s right to natural resources. Plaintiffs argue that the federal government (and essentially the entire government) is affirmatively complicit with the fossil fuel industry in damaging the planetary ecosystem, thereby depriving current and future generations of Americans the right to life, liberty, and property as guaranteed under the Fifth and Fourteenth amendments. Additionally, they assert the government has failed to protect essential resources held under the public trust.

Both the Obama and Trump administrations have filed a series of procedural steps to end this case, dubbed by some as the “trial of the century.” Judges at the U.S. District Court for the District of Oregon, along with Ninth Circuit judges, have blocked such efforts on the part of the government. Most recently, the Ninth Circuit denied the government’s second petition for writ of mandamus (requesting reversal of the district court’s decision to proceed to trial), and the U.S. Supreme Court denied the government’s request for a stay of the proceedings. Trial is set to begin in two weeks.

The implications of this litigation are immense. If the plaintiffs prevail, the government could be held liable for the destruction of public trust resources. If the government prevails, it is yet another dead-end street for the planetary ecosystem. No matter the outcome, this case is likely to be appealed and in litigation for some time, with a possible eventual grant of certiorari. If the U.S. Supreme Court does eventually review this case, plaintiffs may not have a favorable judicial balance on the high court, for recently confirmed Supreme Court Justice Brett Kavanaugh is not particularly passionate about environmental issues.