Oregon Climate Change Battle Continues

Oregon climate change suit survives motion to dismiss

On November 10, 2016, Judge Aiken of the U.S. District Court for Oregon issued an opinion rejecting motions to dismiss filed by both the collective United States Defendants (“Defendants”) and three industrial intervenors, the National Association of Manufacturers, the American Petroleum Institute, and the American Fuel & Petrochemical Manufacturers (“Intervenors”). Judge Aiken issued her opinion in Juliana v. United States, Case No. 6:15-cv-01517-TC (slip. op.).

As previously noted, plaintiffs, a series of minor children, an environmental organization, Earth Guardians, and Dr. James Hansen, a leading climate change scientist, filed suit against the United States, the President, and various federal agencies claiming that their constitutional rights were violated by the failure to take action to respond to climate change threats. Defendants and Intervenors asserted that there were no such constitutional “due process” right, based upon either the Fifth Amendment (due process) or the Ninth Amendment (reserved rights to the people).  Defendants and Intervenors also argued that the case should be dismissed on the grounds that it presented a non-justicable “political question” and challenged the standing of the individual plaintiffs to bring the lawsuit.

In her opinion, Judge Aiken rejected each of the arguments made by Defendants and Intervenors. Judge Aiken first concluded that the case presented a cognizable claim that was not barred by the “political question” limit on judicial jurisdiction and that plaintiffs had asserted standing sufficient to satisfy the requirements of Article III for purposes of having a valid “case or controversy.”

Judge Aiken moved to the core issue—whether there was a constitutional right to assert a claim that governmental inaction on climate change arguably violated a “fundamental right” held by the plaintiffs, and thereby offended the substantive due process provision of the Fifth Amendment.  The Court then held that the complaint stated a potential violation of a fundamental right when it alleged that the confirm is “affirmatively damaging the climate system in a way that will increase human deaths, shorten human lifespans, result in widespread damage to property” and cause other significant harms. (Slip op. at p. 33). This was a substantive due process violation subject to constitutional litigation.

The District Court then turned to separate challenges to the plaintiffs’ claim that the U.S. was violating its “public trust”, at least with respect to territorial waters impacted by climate change. Judge Aiken rejected Defendants challenges to this theory, citing legal cannons as far back as the Justinian Code to support the general notion that the U.S. holds rights in territorial waters as part of a “public trust.”   Judge Aiken concluded that the U.S. could be held legally response under the public trust doctrine, and that the judiciary was an appropriate forum to enforce such rights.

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