‘No Ordinary Lawsuit’: Climate Change, Due Process, and the Public Trust Doctrine

Abstract

In November 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. Obama, a remarkable decision that refused to dismiss a lawsuit brought by youth plaintiffs who claimed that federal government’s fossil fuel policies over the years — which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs) — violated their federal constitutional rights to due process. The court also determined that the public trust doctrine (PTD) was an implicit part of due process and enforceable through the Constitution’s due process clause. If the youth plaintiffs are able to prove at a forthcoming trial that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, the decision could be a game-changer in global efforts to establish a sustainable climate policy that does not threaten future generations.

This article examines Juliana, its context as part of a worldwide campaign of “atmospheric trust” litigation, its pathbreaking reasoning, and its implications in the United State and abroad. The case may be — as it has been described — “the case of the century,” but that epithet will require the young plaintiffs to prevail at trial and a certain appeal to the Ninth Circuit and perhaps the Supreme Court. Even pending the trial and appeals, we think the case is — as the trial judge accurately recognized — “no ordinary lawsuit.”

Keywords: Climate Change, Energy Policy, Environmental Law, Pubic Trust Doctrine, Constitutional Law, Natural Resources Law

JEL Classification: K54, I18, K23, K32, K41, L71, L98, N52, N72, O13, Q28, Q34, Q38, Q48, Q54