In a recent opinion essay, Andrew Varcoe quoted my description of Juliana v. United States as possibly “the most important lawsuit on the planet right now.” Plaintiffs in Juliana have challenged the federal government’s active and significant contributions to climate change, seeking judicial articulation of a fundamental right—rooted in due process, equal protection and public trust principles—to a government that does not knowingly destabilize the climate system and thereby pose unprecedented threats to life everywhere on the planet.
Thus far, the Juliana plaintiffs have survived the government’s motions to dismiss and interlocutory appeal. At this point, the plaintiffs and the federal District Court judge, Ann Aiken in Oregon, stand ready to move the case to a prompt trial. The Department of Justice, on the other hand, has filed a mandamus petition, asking the Ninth Circuit to step in and short circuit ordinary procedures of discovery, trial and appeal.
In his essay, Varcoe raises a number of challenging and vital issues that cannot be fully addressed in the opinion pages (all the more reason for them to receive a full airing in court). In this response, I want to make three especially germane points.
First, although my phrasing was severe, I do believe that the government’s use of the mandamus writ in this context is offensive to the rule of law. As the Supreme Court has noted, “mandamus is a drastic and extraordinary remedy reserved for … exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion,” Cheney v. U.S. District Court for District Of Columbia, 542 U.S. 367, 380 (2004) (quotations and citations omitted). The Juliana litigation raises profound questions about the basic constitutional responsibilities of government, questions that deserve a full airing with the benefit of an evidentiary record, judicially vetted expert presentations, open argument and briefing and post-trial appellate review. The government has pointed to no convincing reason why these standard judicial procedures should be suspended in the Juliana case.
Instead, to support its extraordinary request to halt all proceedings in the District Court, the government cites only the fact that responding to discovery requests will be burdensome—a rather hollow complaint given the Trump administration has expended considerable energy searching for climate-related documents, data, and websites in order to destroy them. It is true that DOJ lawyers are professionally obliged to represent the United States with “vigor, zeal and skill,” as Varcoe puts it, but a lawyer remains responsible for choice of motions, arguments, and, ultimately, clients.
Second, the government argues that the substance of the Juliana plaintiffs’ claims concern policy matters and, as such, judicial involvement with them would raise separation of powers concerns. This argument mischaracterizes the plaintiffs’ core contention, which is really quite simple: The government has a constitutional responsibility not to knowingly take actions that significantly threaten the life of present and future generations.
Of course, every time the government sets a speed limit, it commits some statistical number of individuals to an early death. But the Juliana plaintiffs are challenging something much more severe, widespread and irreversible: a knowing degradation of atmospheric stability that will cause death, suffering and dislocation on a scale unprecedented in human history.
We are talking, then, about a government’s responsibility to maintain the basic conditions necessary for social order to exist at all. (Maybe, echoing prominent Trump appointees, the government’s lawyers will contend that we are not yet in such dire territory with regard to climate change—good luck finding an expert who can survive Daubert to offer that testimony.)
In the American legal tradition we are fond of saying that the Constitution is not a suicide pact. Usually, this phrase is invoked to justify suspending constitutional rights when necessary to preserve the state and its people against a massive threat. The Juliana litigation offers an opportunity to recognize a fundamental constitutional right not to have our own government create and support a massive threat to our very survival. If our Constitution does not include this right then we may have to reconsider whether it is a suicide pact after all.
Finally, confusion regarding remedy continues to cloud debate over climate change lawsuits. Varcoe’s editorial suggests the Juliana plaintiffs are asking the court to order the federal government to solve climate change. From that perspective, their case seems to raise a political question, given only delicate and determined use of foreign affairs powers can bring about the international cooperation necessary to have a reasonable chance of averting the worst impacts of climate change.
Likewise, the plaintiffs’ standing to bring suit seems to come into question, given that climate-related harms cannot be avoided by the United States acting alone. Because, as Varcoe rightly points out, a federal court cannot order the government to “enter into international agreements to fight climate change,” the court also does not seem able to “provide effective and judicially manageable relief for climate change.” To be sure, as the United States has acknowledged, it is responsible for the lion’s share of historical greenhouse gas emissions and continues to emit the second largest chunk of ongoing emissions. Still, looking forward, the federal government by its own actions can only destroy, not save, the planet. (It bears noting, though, that the pace of climate change could be unilaterally slowed by U.S. decarbonization and that impact alone supports the redressability of the Juliana plaintiffs’ claims).
The confusion here stems from the fact that the plaintiffs are not asking the court to order the government to solve climate change. Even if every other nation in the world expressly declared that they would continue emitting greenhouse gases, planet be damned, the Juliana plaintiffs would still have an interest—indeed, a fundamental right—not to have the federal government materially contribute to that demise in their name.
The relationship of a government to its citizens is distinctive and does not become less so just because a global collective action problem is presented. No other nation is accountable to the Juliana plaintiffs in the way that the U.S. government is accountable. No other nation’s laws and policies must be justified and withstand scrutiny under the Constitution in the way that U.S. actions must. In that sense, the remedy sought by the Juliana plaintiffs is quintessentially appropriate for judicial resolution: They seek to ensure that the federal government’s actions are consistent with their constitutional rights, and to reaffirm the core principle that even the sovereign is subject to the rule of law.
There is a distinctive harm in knowing that the suitability of the planet to sustain life is being threatened by one’s own government, no matter how significantly. In the landmark Urgenda case, in which a Dutch district court held the Dutch state accountable for not taking sufficient action to combat climate change, the government defended by arguing that the entire greenhouse gas output of the Netherlands was a tiny fraction of global emissions, approximately 0.5 percent.
The Dutch court properly rejected this consequentialist alibi, reasoning that even relatively small acts of self-sacrifice and leadership—seemingly fruitless in the face of a global collective action problem—might instead help inspire an upward spiral that brings out the best in the world community. Even if such an upward spiral does not transpire—a terrifying prospect made more likely by the Trump Administration’s withdrawal from the Paris Agreement—the Dutch plaintiffs have an interest in knowing that they and their government representatives stood up, and that future generations would judge them less harshly for having done so.
As Solzhenitsyn wrote, “Let the lie come into the world, let it even triumph. But not through me.”