'On the Eve of Destruction': Courts Confronting the Climate Emergency

Abstract

This article examines the judicial role in the intensifying climate emergency. In the leading American climate case, Juliana v. United States, a Ninth Circuit panel recognized that the world is approaching “the ‘eve of destruction’” in which extreme climate disruption threatens to destroy the nation and civilizations worldwide. The court agreed with plaintiffs that the U.S. government has fervently promoted a dangerous fossil fuel energy system for decades with full knowledge of the catastrophic consequences it would cause. In this last decade of opportunity to stave off irrevocable tipping points, the world must slash emissions 45% by 2030 and reach zero emissions by 2050. Yet a bitterly divided Ninth Circuit panel in Juliana -- the only case positioned to force the Executive Branch to decarbonize the U.S. energy sector -- rejected plaintiffs’ suit on the basis that the court lacks the power to fashion a remedy. The case awaits a ruling in federal district court on a motion to amend the complaint.

The U.S. government’s ruinous energy policy stems from an imbalance of power between the three branches of government and a colossal failure of constitutional checks and balances. Essentially unbridled discretion grew in the executive branch, which used environmental laws to advantage fossil fuel corporations even as the mounting peril of their products became patently clear. Over several presidential administrations, a dispassionate and ineffective judiciary failed to curb the agencies—such that little restraint existed when the Trump administration floored the accelerator on fossil fuel development, speeding the nation, and the entire world, toward a climate cliff.

Juliana’s 21 youth plaintiffs sued the Obama Administration, seeking declaratory relief and injunctive relief ordering government defendants to develop and implement a remedial plan to decarbonize the energy system at a pace set by scientific standards. Shortly after the election of President Trump, they secured a decisive and sweeping victory in the U.S. District Court of Oregon, which announced a constitutional right to a “climate system capable of sustaining human life.” On an interlocutory Ninth Circuit appeal, the majority and dissenting opinions articulated two profoundly different judicial roles.

Judge Andrew Hurwitz’s majority opinion strips the judiciary of its capacity to secure youth plaintiffs’ fundamental rights, leaving the matter entirely to the two political branches—the very branches that delivered this catastrophe to the American public. Solidifying the imbalance of power, it casts courts as passive umpires reflecting their function in simpler cases brought under environmental statutes that end in clear wins or losses and characteristically terminate judicial involvement altogether. Judge Staton’s dissent positions the Juliana climate case in line with other civil rights cases confronting longstanding constitutional rights violations. Faced with entrenched disregard for fundamental rights, those courts perform an engagement role invoking problem-solving tools and mediation techniques to fashion broad declaratory relief and remedial plans designed to bring about constitutional compliance. As an increasing number of courts around the world respond to the rank urgency of climate crisis to hold their governments accountable, the judicial engagement role provides a pathway forward.

Keywords: climate change, Juliana v. United States, climate crisis, energy