In August 2015, the United States, then president Barack Obama, and the heads of numerous federal executive agencies were sued in a civil rights action by a group of 21 young people, non-profit organization Earth Guardians, and Dr. James Hansen as guardian for future generations. The action was filed in federal district court in Oregon, where a trial is currently scheduled to begin on October 29.
Basis of the claim
In summary, the plaintiffs allege that the federal defendants have known for more than fifty years that carbon dioxide produced by the industrial scale burning of fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations depend for their wellbeing and survival. The suit further alleges that the defendants have long known of the unusually dangerous risks of harm to human life, liberty, and property that would be caused by continued fossil fuel burning, and that, rather than responding to this knowledge by implementing a rational course of effective action to phase out carbon pollution, the federal defendants continued to permit and subsidize fossil fuel extraction, development, consumption and exportation, thereby deliberately allowing atmospheric C02 concentrations to escalate to levels unprecedented in human history.
The plaintiffs claim that the defendants’ policy on fossil fuels deprives the plaintiffs of life, liberty, and property without due process of law, impermissibly discriminates against young citizens, who will disproportionately experience the destabilized climate system, and fails to satisfy the defendants’ obligations to hold certain essential natural resources in trust for the benefit of all US citizens. The plaintiffs seek injunctive and declaratory relief, asserting that there is an extremely limited amount of time to preserve a habitable climate system before the US will become locked in an increasingly severe climate.
The defendants’ response
The defendants are currently petitioning the US Court of Appeals for the Ninth Circuit for a writ of mandamus to stay the trial. Two prior motions for similar relief were denied by the Ninth Circuit in March and July of 2018. The US Supreme Court also denied the defendant’s motion for a stay of proceedings as “premature” on July 30, 2018, although the unsigned order stated that the “breadth of [the] claims is striking … and the justiciability of those claims presents substantial grounds for difference of opinion.”
Most recently, on October 15, 2018, the Oregon federal judge presiding over the case ruled that the plaintiffs’ claims largely survived the defendants’ motions for summary judgment and for judgment on the pleadings, finding that the plaintiff’s evidence and experts’ opinions were sufficient to present a question of fact as to whether the government’s knowledge and actions met the required standard of “deliberate indifference” to the threat of infringing on the plaintiff’s constitutional rights. The judge also rejected the defendant’s arguments for lack of standing, separation of powers, and that the claims must be dismissed under the Administrative Procedure Act. However, she agreed with the defendants that (1) President Trump should be dismissed from the suit as an injunction against him was not necessary to obtain the plaintiff’s requested relief, (2) the Ninth Amendment does not provide a cause of action, and (3) the plaintiffs could not proceed on a theory that the government’s climate change policy discriminates against young people.
For further information, please contact Benjamin Rubinstein, Partner, or your usual Herbert Smith Freehills contact.