Appeals Court Throws Out Teens’ Climate Change Suit

Bloomberg Law with June Grasso from Bloomberg Radio is at the end of the landmark climate change lawsuit brought by twenty one young people, A panel of the Ninth Circuit Court of Appeals has thrown out the lawsuit. Despite agreeing that the plaintiffs presented compelling evidence that climate change is bringing quote the eve of destruction, the court said it was beyond the power of the judiciary to order a

remedial plan. The decision echoed the questioning by Judge Andrew Hurwitz during the oral arguments, you present compelling evidence that we have a real You can make compelling evidence that we have in action by the other two branches of government. It may even rise to the level of criminal neglect. The tough question for me, I suspect for my colleagues is do we get to act because of that? Joining

me is Pat Parento, professor at Vermont Law School. Many legal experts didn't even expect this to go the distance. Why is that? Well, it is an extraordinary request that the federal courts ordered the US government to begin reducing greenhouse gas emissions at the level that the scientists say

are necessary. You know, courts are reluctant to make that kind of big policy judgment in most cases, and this is the biggest case of all where you're literally talking about the entire American economy and every every sector of it. And it's true that the other two branches are grid locked, and it is true that in the past the court has seen its way clear to intervene when the other branches were stuck, and most notably the desegregation cases. But

this one is even bigger than those. So the courts are just reluctant to step over the line under the separation of powers doctrine and order that kind of broad scale relief. Go back and remind us what this lawsuit is about. So this is literally a case under the Constitution the Fifth Amendment substantive due process, in which the youth plaintiffs are arguing they have a fundamental constitutional right to a climate system that quote is capable of sustaining

life on earth and ordered liberty. That's kind of a code word for substantive due process, ordered liberty. So it's a fundamental constitutional right. It's unenumerated, of course, like many other rights that we enjoy, including the right to privacy and all that goes with that. So it's a constitutional based case, very different from any other kind of environmental case we've ever seen, and quite sweeping, of course in its dimension. You said that this was bigger or went

further than the desegregation cases. How so, Well, it literally is saying the government is affirmatively taking actions that's creating a danger to US citizens, to the U S economy, to U S security by virtue of the fact that

they're promoting. The government, I mean, is promoting all of this fossil fuel development, pipelines and oil terminals and coal export terminals and drilling on land, drilling offshore, and the science is saying that has to stop, and we have to phase very very fast to renewable energy, energy efficiency, low carbon energy. We have to reach zero carbon emissions

by twenty fifty, say many of the scientists. So all of the actions that the Trump administration is taking to facilitate all of this expansion of fossil fuels is going in exactly the opposite direction from what the science says

is necessary. And the science further says that we're approaching these tipping points, as they call them, where you have irreversible climate change that's impossible to stop because of all these feedback loop mechanisms like the melting of the permafrost releasing methane, and the drying of the Amazon turning it into a source of emissions instead of a sink, and so on and so on. And the Ninth Circuit panel

in the Juliana case acknowledged all this. It said, the plaintiffs have made a very compelling case that this is an extremely dire emergency that demands government actions. So the court walked right up to the point of saying we need to intervene, and then it backed away. This was a split decision, so one of the judges did believe

that the court could handle this. Yes, the dissenting judge, Josephine Stanton She said, this is precisely the kind of case where the Core needs to enforce a constitutional right. For purposes of the Ninth Circus decision, the panel assumed

that there was this constitutional right. They didn't actually decide on the merits whether there was such a right, but they said at this stage of the case, which is should we have a trial, we must accept the argument that there is a colorable basis for this constitutional right.

So this was an early stage of the case, and all the youth plainists were asking for it was just a trial, and so the dissenting judge said, my goodness, at least we ought to grant these plainists a trial to see what they can prove through the evidence that they have. She said, it is as if an asteroid were barreling towards Earth and the government decided to shut

down our only defenses. Yes, And she basically painted a picture of we're standing on a cliff and we need to do something serious to address it, and the courts have a role to do that and shape a remedy. Maybe not everything the planeiffs were asking for, but at least some accounting from the government for why it's continuing to do things that some of its own scientists have said must stop pat The Planetts attorney has said that the case didn't have to have a sweeping remedy that

the court described in its decision. They could have done less. That's right. For example, there's a lot of government power in procurement. The government is actually the largest buyer of everything, services, automobiles, buildings. You can just imagine, they're like three fifty thousand federal buildings. So there's there's a whole lot of power that the federal government has to reduce emissions and ensure that the products and services they're buying are using the most efficient

technologies to reduce emissions. Plus they have control over all of the offshore oil and gas leasing. They can declare moratorium on at until we begin to see these emissions start to decline. There's probably a hundred things that the federal government could do to make meaningful progress towards achieving

carbon neutrality. And that's what the Plainest lawyers were saying, is give us a chance, with our expert testimony to show you what can be done that's reasonable and doable and really ought to be done in the interest not only of climate change, but many many other environmental problems that we're dealing with. That's what they were shooting for, is a trial on the merits and an opportunity to prove that there is a way forward that doesn't cripple

the US economy, that actually strengthens it. The plans are going to ask for a full on bank hearing of the Ninth Circuit. Since the judges on this panel were three judges appointed by President Barack Obama, do you think it will help them to have it on bank panel if the Ninth Circuit agrees to that. I'm not sure about that. I think there's a danger this This decision is probably the best that they could possibly hope for with, as you say, three Obama appointees. The panel was clearly

sympathetic to these plaintiffs. Even the majority went on and on about how strong a case they've made, a moral case, they said, for the government not acting in the way that it should. You know, the composition of the Ninth Circuit right now, there are ten Trump appointees on the court. There are twenty nine active judges. Ten of them are Trump appointees, thirteen and all are Republican appointees. You need a majority of the Ninth Circuit to get on Bank,

which seems unlikely to me. But if they did get on Bank, the risk is they're going to get a worse opinion. They're going to get an opinion that vacates the opinion that's now on the books, including that wonderful dissent by Judge Stanton, and replaced with something that could be far more damaging in terms of standing to bring these kinds of cases. So there's a risk involved in just going for on Bank. There's an even greater risk, of course, as they try to go for review by

the US Supreme Court. Explain why this has already been up at the Supreme Court once yes, and the Court declined to intervene when the government asked it to stop the whole case. But it made it very clear that the relief the plainists were seeking was extremely broad and questionable. So the Supreme Court has signaled the Ninth Circuit that

this is a case that probably should be dismissed. I think the majority on the panel we're looking and reading the tea leaves, if you will, from what the Supreme Court's order was sending the case back to the Ninth Circuit. It's almost impossible to think that you could get a five member majority opinion of this Supreme Court ruling relief that a very liberal panel of the Ninth Circuit was

unable to come to. So again, the risk when you get to the Supreme Court is you get a new opinion that slams the door on other cases that might be brought challenging actions of the government that are making climate change worse. And the way they do that is

by saying it's a political question. And all of these different cases that have been making their way through the lower courts would be in jeopardy if the U. S. Supreme Court says the nature of climate change, because of its global dimension, is a matter that the Court should stay out of and it's up to the Congress and the executive branch to deal with it, not the courts. That's the big danger in my mind. So, Pat then this case is basically over. Well, it's not over as

far as the plane Off lawyers are concerned. They're on a mission. They're determined to take their chances. I hope they will step back if they lose the on bond petition, they will step back and rethink whether they really should press their luck with the Supreme Court. But I know they're determined to try to do something now in the face of this emergency, and it's just a very excruciating

decision for lawyers to have. Demand do they roll the dice and think that they might get a breakthrough opinion, you know, a precedent setting opinion like Brown versus Board of Education, or like the burgher Fell decision for marriage equality, some kind of breakthrough in the law at a time when we need it. That's the promise of what they're trying to do. But the peril is they could end

up making bad law for everybody. Let's turn now to the Trump administration last week finalizing a rule to strip away environmental protections for streams, wet lands, and groundwater. Tell me about the new rule. Well, in a nutshell, this rule, with a stroke of a pen, removes protection for over half of the wetlands in the United States that were

previously covered or at least arguably protected. There are still when you get down to the individual circumstances of each water body, whether they're in fact covered by the federal are or not, you can get arguments, But in broad scope, this rule makes it clear that literally half of the wetlands of the United States are not protected under the Clean Water Act, and hundreds of thousands of so called headwater streams sometimes called ephemeral streams that only run part

of the year in response to major rain events or snow melt and that sort of thing, and even some intermittent streams that might not contribute significantly to the major rivers and lakes in the country. The Clean Water Act over almost fifty years now has protected many of these waters. And it's critical because they are about twenty eight states that have laws on the books that say their laws can't be any stricter than what the Federal Clean Water

Act requires. So when you reduce the scope of the Federal Clean Water Act, you automatically revert to these laws. That's in the states that say their laws can't be any stricter. The Trump administration was trying to argue that if you remove federal protection, it's not a big problem because the states are free to step up and fill the gap. But what we've seen is the states haven't done that quite the contrary, So this is really a remarkable rule. It's not getting the kind of analysis in

the in the media. Frankly, that it it deserves. This is a very serious matter. One in three Americans depend on waters for drinking water supplies that were formally covered by the Clean Water Act that will not be covered if this rule withstands the legal challenges that are just about to begin. Is it true that this rule not only undoes the Obama rule, but also rules that were in place in the seventies and eighties, all the way

back to the seventies. Yes, I was in the courtroom when the first case was decided n R d C Versus Callaway. That's the case where the core of engineers was arguing that the scope of the Clean Water Act was limited to what we call traditionally navigable waters, big waters, and immediately adjacent wetlands and nothing more. And the court in nineteen struck that down and said, no, this new law is much broader than that. So all the way from the mid seventies to just recently, we've seen the

courts continually upholding a broad reach of the law. It's true that the United States Supreme Court, in these two controversial decisions, the Swank decision and the Rapanos decision, have raised all kinds of questions about the scope of the Act. But the point is, the Supreme Court has never struck down any of these regulations that date back to the

nineteen seventies. They've challenged the application of the regulations in particular cases cases where the wetlands were isolated, as they call them, or cases where the wetlands were very far removed from any major river in the Rapano's case, for example, But the Court has never either definitively said what is the limit of the federal law, nor have they struck

down any of these regulations. So the Trump rule is now the first time that we have an administration adopting a rule that cuts way back on the Clean Water Act without any clear judicial precedent for what they're doing. So, Pat you mentioned that there will likely be challenges. What would the legal basis for a challenge b Well, the basis is going to be the historical interpretation and the sharp break from that forty seven years worth of law

and interpretation. And the Supreme Court has said when you break from a traditional interpretation of the law like that, you need to have really strong justification, like, for example, there's been a change in the way the states have been regulating these waters, so that the federal law is no longer as necessary. But as I've just said, that's not true, or maybe a change in the science that says that these headwater areas are not that important, but

that's certainly not true. The e p A under Obama did the most comprehensive analysis of the importance of these so called headwater streams and what's called the Connectivity Report, And even the Science Advisory Board that Trump has appointed has criticized this rule cutting back on protecting these headwaters

and these wetlands as being not based on science. So there are lots of reasons why the Trump administration rule is breaking from prior interpretations, is not supported by the science, is not supported by the economic value of the resources that they're writing off, and so forth. So this will be a classic challenge to whether the action that's being taken is reasonable and it's based on a strong record

or not. Thanks for being on Bloomberg Law, Pat. That's Pat Parento, a professor at Vermont Law School.