In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time.
The legal theories these lawsuits pursue do not come from statutes, but instead rely on constitutional law, natural law, and the common law. This is the kind of litigation that is most likely to draw criticism not only from the governmental and industrial institutions it seeks to constrain, but from within the environmental community itself, as some worry that the litigation may produce more bad law than good. I admit that I had the same fear when the litigation commenced, and to a large extent I still do. But for purposes of this essay, I put that anxiety to the side and am simply curious about, and open to, the lessons these cases might teach us.
My focus is Juliana v. United States, known as the "children's climate lawsuit," in which a group of children and other plaintiffs ask for declaratory and injunctive relief against the agencies of the federal government that do work directly related to climate change. The plaintiffs allege that the government has knowingly promoted and permitted activities contributing substantially to the risks of climate change and has, with deliberate indifference, failed to protect them against these risks, even though the government has known about them for decades. The plaintiffs' case was on the eve of trial when the Supreme Court issued two unusual orders, winking and nodding at the lower courts to prod them to stop the trial before it began.
I argue that the courts should allow Juliana to proceed through the normal process of trial and appeal. I also compare the claims in Juliana to other cases, also involving climate change and recently pending in the nation's courts, and try to persuade the reader at least to find it interesting that cases aiming to protect fossil fuel interests proceed through the courts without anyone suggesting they do not belong there, while cases aiming to constrain these interests confront – and have come to doom based on – a battery of objections about the types of claims courts simply should not decide. I suggest that these objections rest on an undefended and untenable assumption about the nature of the liberty the separation of powers protects.