Brief of Amicus Curiae Law Professors in Support of Plaintiffs-Appellees' Answering Brief (Kelsey Cascadia Rose Juliana, et al., v. U.S.)

17 Pages Posted: 7 May 2020

See all articles by James R. May

James R. May

Widener University Delaware Law School

Erin Daly

Widener University Delaware Law School

Helen H. Kang

Golden Gate University School of Law - Environmental Law and Justice Clinic

Date Written: 2019

Abstract

Amicus curiae are law professors and scholars (listed on the signature page) who teach, research, and publish in the subject areas of constitutional, environmental, and climate law. Amici law professors are of the view that Plaintiffs have pled legally cognizable causes of action under the Fifth Amendment of the Constitution of the United States.

Amici present three points in support of Plaintiffs-Appellees’ Answering Brief. First, the lower court properly held that it has jurisdiction to hear Plaintiffs’ constitutional claims under the Due Process Clause for three reasons: (1) Plaintiffs have alleged and provided evidence of sufficient injury in fact that is fairly traceable to Defendants’ conduct and can be redressed by the court to satisfy standing requirements; (2) federal courts can exercise jurisdiction over Plaintiffs’ claims because the reference in Article III to “Cases” and “Controversies” is not frozen in time to what it was in the “courts at Westminster”; and (3) the Administrative Procedure Act is not jurisdictional and there is no need for litigants to pursue constitutional claims under it. This Court should reject Defendants’ arguments that the federal judiciary should shirk its constitutional responsibility in this case.

Second, the lower court properly held that, with respect to those claims it addressed, Plaintiffs have pled constitutionally cognizable claims under the Due Process Clause of the Fifth Amendment, again for three reasons: (1) The Fifth Amendment encompasses Plaintiffs’ claim that government action has deprived them of a constitutionally- cognizable liberty interest in a stable climate system; (2) Plaintiffs’ due process claim for government inaction falls within the “state-created danger” exception to government immunity; (3) Plaintiffs have also pled a constitutionally cognizable equal protection claim under the Due Process Clause of the Fifth Amendment.

Last, the logical extension of the Defendants’ arguments would virtually immunize government action from judicial review, and therefore should be rejected.

Keywords: environmental law, constitutional law, standing, due process clause, climate change

JEL Classification: K32, K19

Suggested Citation

May, James and Daly, Erin and Kang, Helen Haekyong, Brief of Amicus Curiae Law Professors in Support of Plaintiffs-Appellees' Answering Brief (Kelsey Cascadia Rose Juliana, et al., v. U.S.) (2019). Widener Law Review, Vol. 25, 2019, Available at SSRN: https://ssrn.com/abstract=3574622

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Erin Daly

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302-477-2143 (Phone)
304-477-2257 (Fax)

Helen Haekyong Kang

Golden Gate University School of Law - Environmental Law and Justice Clinic ( email )

536 Mission Street
San Francisco, CA 94105
United States

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