The wacky Ninth Circuit Federal Court of Appeals has decided that climate change is a constitutional issue for the courts to decide. A three-judge panel rejected the Trump administration’s mandamus petition seeking early review of U.S. District Court Judge Ann Aiken’s 2016 denial of motions to dismiss a lawsuit originally filed against the United States, the president, and various executive branch officials and agencies. The environmental group Our Children’s Trust initiated the lawsuit in 2015 on behalf of 21 children, claiming the defendants were infringing on the constitutional rights of the plaintiffs and future generations by adopting policies that allegedly favored the fossil fuel industry to the detriment of a stable climate. Judge Aiken’s ruling, using words sounding more like a ruler than a judge interpreting the law as it exists, stated in justification of her decision not to summarily dismiss the complaint: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” If only nature were subject to the rulings of activist U.S. district court and appeals court judges.
The Trump administration had argued in its petition that the Ninth Circuit should intervene to “end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government.” No, said the panel. Instead, it decided that the children should have their day in court. In the words of Julia Olson, executive director and chief legal counsel of Our Children’s Trust and co-counsel for the young plaintiffs: “The Ninth Circuit just gave us the green light for trial. We will ask the District Court for a trial date in 2018 where we will put the federal government’s dangerous energy system and climate policies on trial for infringing the constitutional rights of young people.”
What are the “constitutional rights” of these 21 youths that are supposedly being infringed? The youths are claiming, through their sponsoring radical environmentalist activist group, that the government must “ensure that atmospheric CO2 is no more concentrated than 350 [parts per million] by 2100 … to stabilize the climate system,” according to the Our Children’s Trust complaint. Using a made-up judicial doctrine of a constitutional right to the protection of “public trust resources,” the plaintiffs are literally aiming sky-high in claiming that the government is not doing enough to protect the atmosphere for children today and for future generations. They want an end to any policies that might help the fossil fuel industry, which they claim cause climate change and thus violate their constitutional rights to life, liberty, property and equal protection.
The plaintiffs are not interested in working through the process established by the Founding Fathers to decide matters of public policy through the elected branches of government. “Plaintiffs have no avenues of redress other than this Court, as Plaintiffs cannot challenge or alter the acts of Defendants concerning fossil fuels,” their complaint alleges. In other words, the plaintiffs prefer to use a judicial end run, asking lifetime-appointed judges to find yet another “right” in what Supreme Court Justice William O. Douglas once called the "penumbras" and "emanations" of other constitutional protections. They are absolutists in rejecting any notion of the importance of fossil fuels to the economic welfare and national security of the American people today and for the foreseeable future, which are the primary responsibilities of Congress and the executive branch, not the courts, to protect.
The plaintiffs rest their speculative case on alleged “harmful effects” from governmental acts the plaintiffs claim “will occur in the future.” On this thin foundation the plaintiffs have asked for extraordinary relief. They want the court to treat them and future generations as “protected classes,” to invalidate federal laws and actions they allege “disproportionately discriminate against and endanger them,” and “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.” Presumably, the child plaintiffs and future generations would become wards of the court, needing protection against the elected branches of the federal government.
In some respects, the plaintiffs are following the course taken in the successful anti-tobacco cases of the past. They have alleged, as summarized by the Ninth Circuit opinion, that the government has “known for decades that carbon dioxide emissions from the burning of fossil fuels destabilize the climate,” but has nevertheless continued to enable such destabilizing climate change through various governmental policies. The government has thereby allowed, according to the complaint, “atmospheric carbon dioxide concentrations to reach historically unprecedented levels.”
However, what distinguishes this complaint from the anti-tobacco cases is the Ninth Circuit’s own recognition that “some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress.” The plaintiffs here are purporting to represent not only themselves but future generations yet unborn against harms they admit have not yet occurred.
For example, one of the plaintiffs, Journey Z, allegedly “has deep cultural and spiritual connections with the Earth and all life. These connections depend on a stable climate system for survival, providing Journey with a fundamental sense of responsibility to protect the Earth for his generation and for future generations.” Another plaintiff, “Future Generations, by and through their Guardian Dr. James Hansen, retain the legal right to inherit well-stewarded public trust resources and to protection of their future lives, liberties, and property – all of which are imminently threatened by the actions of Defendants challenged herein.”
If future generations have a constitutional right to life, then why shouldn’t Roe v. Wade be overturned and abortion be declared unconstitutional, except in extraordinary circumstances, for depriving future generations of unborn the potential for life? Progressives don’t care a thing about protecting the right to life of future generations of unborn persons if it means curbing women’s rights to unfettered abortions today.
Judge Aiken cited Thomas Jefferson several times in her opinion. At one point she wrote, “Thomas Jefferson…thought that each generation had the obligation to pass the natural estate undiminished to future generations.” Judge Aiken, however, ignored the repeated warnings by Thomas Jefferson that the judiciary was in danger of encroaching on the constitutional authority of the other co-equal branches of the federal government. For example, Jefferson stated in one letter he wrote in 1823 that judicial decisions were “sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.” By keeping the outrageous climate change lawsuit alive, the Ninth Circuit is once again legitimizing such judicial overreach.