The Latest On International Efforts To Save The Planet Through Climate Litigation

When I first came upon it, I called it the “stupidest litigation in the country.” In 2015 a group of adolescents, led on a leash by some activist environmental lawyers, had sued the federal government in the District Court for Oregon. The plaintiffs alleged violation of their fundamental constitutional right to a clean and healthy environment, and sought as remedy a compulsory national plan to “phase out” the use of fossil fuels nationwide plus (why not?) “draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend. . . .” I first covered this litigation in a post in December 2017 titled “The Stupidest Litigation In The Country Reaches The Ninth Circuit.”

Why “stupidest litigation”? Because this case seemed to represent the ultimate reductio ad absurdum of the entire idea of courts and of litigation, and indeed an attempt at complete subversion of our three-branch system of government. Just make up a new and sweeping “constitutional right,” find a friendly activist-minded judge, and you can get an order transferring all the significant operations of the legislative and executive branches of the government to a single unelected person operating out of a courthouse in Eugene, Oregon. Surely, no court would take this seriously. But then, one must take account of the powerful religious hold that the claims of the climate cult have over all those on the political left, not the least over many judges. And then there’s the excitement for a lonely small-town judge of potentially getting to run the entire country by decree without having to go through the bother of getting elected to anything.

So just because this litigation was stupid would not mean that it would have no chance of success. Also, keep in mind that the environmental left has near infinite resources, and never gives up.

I then had a post in January 2020 reporting that this stupidest of all litigations had died a seemingly permanent and irrevocable death. In a second appeal to the Ninth Circuit, that court had gotten to the issue of standing of the plaintiffs, and particularly to the element of whether the plaintiffs’ claims were “redressable” by remedies that the courts had the power to impose. The Ninth Circuit held that the plaintiffs could not establish the redressability element, and as a result remanded the case to the District Court “with instructions to dismiss for lack of Article III standing.” The plaintiffs then let the time expire to petition the Supreme Court for review.

Does that sound about as final as final can get? You may then be surprised to learn that the case is somehow still alive, has gone through extensive proceedings back in the District Court since 2020, and was recently nearing trial when the Justice Department yet again, now for the third time, sought the intervention of the Ninth Circuit to put an end to the madness. Meanwhile, far from being discouraged by the results of this litigation to date, the American environmental bar has brought multiple other copycat cases in other jurisdictions. And then there’s Europe, where the courts seem completely unbounded in their concepts of their own powers.

So it seems like an appropriate time for an update on these cases seeking to have courts order the suppression of use of fossil fuels on the basis of some claimed “fundamental constitutional right.”

Juliana

The previous Ninth Circuit decision, instructing that the Juliana case be dismissed for lack of standing, was issued in January 2020. That decision was the result of a heroic effort of the Trump Justice Department, and its lead environmental lawyer Jeffrey Bossert Clark, to inject some sanity into the case after prior maneuvers by the Obama Justice Department to put up a less-than-half-hearted defense and throw the game to the other side. As I stated in my January 2020 post:

Congratulations to Jeffrey Bossert Clark, the Justice Department lawyer who argued the case, and somehow managed to win it with one and three-quarters hands tied behind his back by the actions of the prior administration.

Read that post for some examples of some of the absurd admissions made by Justice during the Obama era in the effort to make the case impossible to defend. So it’s at least a little interesting that the Biden/Garland Justice Department doesn’t just roll over and consent to some sweeping injunction as a way to get its climate agenda set into stone and make it impossible for a subsequent administration to undo. Could it be that they care at least a little bit about preserving the prerogatives of the Executive Branch over simply getting the current agenda of the left implemented as quickly as possible?

The government’s new Petition to the Ninth Circuit for mandamus to end the case was filed on February 2, 2024 — more than four years after the Ninth Circuit’s last decision. That Petition contains a litany of the proceedings in the District Court since the previous decision. According to that recounting, on remand to the District Court the plaintiffs moved for leave to file an amended complaint that, they claimed, tweaked the requested remedies in order to obviate the redressability problem that had caused the Ninth Circuit to order dismissal. The District Court then sat on that motion for more than two years, but in June 2023 granted it, and the newly amended complaint was filed. (The District Court’s decision on that motion is attached to the Mandamus Petition at the link above.). The government moved again to dismiss, mostly on the basis of the Ninth Circuit’s prior decision, but in December 2023 the District Court denied that motion in large part, in particular allowing claims for what is called “declaratory relief” as a way of getting around the Ninth Circuit’s previous invalidation of claims seeking injunctions.

The Oregon judge (Ann Aiken) then held a status conference in the case on January 19. At that conference, according to the government’s Mandamus Petition, the plaintiffs asked for another year of further pre-trial proceedings (mostly additional discovery), and a trial date of December 2, 2024.

The plaintiffs filed their response to the Mandamus Petition on March 21. Mainly, it addresses technical issues of the availability of the mandamus remedy — that is, the availability of seeking relief from the court of appeals before the case has first proceeded to trial and judgment.

But the more interesting recent development in the Ninth Circuit is the filing on March 28 of this amicus brief from a group of Congresspeople and Senators, supporting the position of the plaintiffs. The Congresspeople in question include the likes of both Oregon Senators (Merkley and Widen), and a collection of the usual far-left suspects, from Senators Sanders, Whitehouse and Markey (where is Elizabeth Warren when you need her?) to Representatives Jamaal Bowman and Cori Bush and Rashida Tlaib and, of course, AOC. Pithy quote:

We, members of Congress, believe that these Youth Plaintiffs’ fundamental rights to life, liberty, and property, and the access to the essential resources they need to survive are being stripped by a man-made climate crisis caused, in large part, by our nation’s perpetuation of “carbon emissions from fossil fuel production, extraction, and transportation.” . . . All three branches of government have “more than just a nebulous ‘moral responsibility’ to preserve the Nation.” . . . The executive branch should cease its extraordinary and oppressive efforts, examined below, to silence Youth Plaintiffs efforts to vindicate their Constitutional rights.

Or in other words, these members of Congress don’t think it’s of any consequence to have a court usurp the power of Congress to enact the government’s policies to suppress fossil fuels, or to not suppress fossil fuels (as the case may be). If we can’t muster a majority of Congress to enact the policies we prefer, we’ll just ask a single judge in an Oregon court to do it for us. Whatever shortcut works best to get the agenda of the left put into place immediately.

I suspect that the Ninth Circuit in this case is not going to be pleased with the actions of the District Court in circumventing its prior ruling. On the other hand, the prior ruling was from one three-judge panel, and this case could get a different panel, perhaps one more filled with the religious fervor of the climate cult.

Europe

Meanwhile over in Europe, you can count on courts to be even more audacious than ours. The Spectator today has a report on a decision just out from something called the European Court of Human Rights, that sits in Strasbourg, France. Get ready for this one.

Today, the European Court of Human Rights ruled on an unprecedented trio of cases which claimed that European states have taken insufficient action to combat climate change. . . . The three cases involved claims against Switzerland, France and Portugal. They were heard by the Grand Chamber of the Strasbourg Court – essentially Europe’s top human rights court – with judges from 17 European states.

The court ruled against the plaintiffs in the cases from France and Portugal, but ruled in favor of the plaintiffs in the case from Switzerland. So here is the description of the Swiss case from the Spectator:

In the Swiss case, it was argued that there had been multiple breaches of the European Convention on Human Rights. Amongst other things, the claimants’ cited breaches of the right to life (Article 2) and the right to respect for private and family life (Article 8).

So the presence in the European Convention on Human Rights of a “right to respect for private and family life” is deemed by this court to be sufficient basis to order national governments to enact and implement policies to suppress fossil fuels. Here’s the relevant text of Article 8 of the ECHR:

Everyone has the right to respect for his private and family life, his home and his correspondence.

From which the court was able to get to the following result:

[The court found] that Switzerland had failed to comply with its duties under the ECHR concerning climate change and therefore found a breach of the right to respect for private and family life. It determined that Article 8 of the Convention must be seen as encompassing a right for individuals to be protected by state authorities from the serious adverse effects of climate change. The Court concluded that there had been critical gaps in the process of putting in place the relevant domestic regulatory framework in Switzerland, including a failure by the Swiss authorities to quantify national greenhouse gas emissions limits. Switzerland had also failed to meet emission reduction targets and had not acted in time to devise, develop and implement relevant climate related legislation and measures.

So there!

The Spectator provides this quote from the court’s opinion:

‘[D]emocracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes.’

In other words, “democracy” means that a handful of unelected judges make the rules for everyone else, in accordance with elite sensibilities and religious cults. Could there be a better word for this than “Orwellian”?

Where this case goes from here, I don’t know. In Switzerland, the central government has famously few powers, and nobody in charge for very long. Undoubtedly, that has a lot to do with why they are such a successful country. How the court gets its ruling implemented is therefore a mystery to me. Maybe they don’t care.

The European Court of Human Rights seems to have no concern whatsoever about preserving its own legitimacy or avoiding becoming a laughingstock. After all, they are saving the planet.