Bench Memos

Law & the Courts

Judicial Sanity on Climate-Change Litigation

Back in November 2016, in what I described as “perhaps the most pervasively lunatic ruling I have ever seen,” federal district judge Ann L. Aiken (of the District of Oregon) denied the Obama administration’s motion to dismiss the lawsuit in Juliana v. United States in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate. I won’t repeat Aiken’s howlers here. I will note that the opportunity that the Supreme Court has given to the Ninth Circuit to correct Aiken’s mess remains pending: the government’s interlocutory appeal is now in the process of being briefed.

Meanwhile, I am pleased to report a very sensible ruling issued this week in a similar case.

In Clean Air Council v. United States, an environmental organization and two children claim that the president and various cabinet officers and agencies are violating their rights by “rolling back” environmental regulations and by making related personnel and budget changes, and they seek a judicial declaration against any rollbacks that would increase the frequency or intensity of the life-threatening effects of climate change.

In his opinion, federal district judge Paul S. Diamond (of the Eastern District of Pennsylvania) dismissed plaintiffs’ action on two alternative grounds: plaintiffs’ lack of standing and their failure to state a legally cognizable claim. The standing holding rests in turn on various independent grounds, including no actual or imminent injury, no traceability of alleged injuries to defendants’ actions, and non-redressability. Here’s an excerpt on non-traceability:

Remarkably, Plaintiffs purport to trace their injuries to the President firing Secretary of State Rex Tillerson and replacing him with Mike Pompeo.…

To find that increased emissions are “fairly traceable” to Defendants’ personnel and budgetary actions, I must speculate as to what actions the Federal agencies and the fired personnel would have taken but for the budget cuts or firing decisions. Presumably, I must predict the actions the Department of State would have taken under Secretary Tillerson that it will not now take under Secretary Pompeo and how Plaintiff’s injuries are traceable to that difference. Indeed, Plaintiffs seek to depose former Secretary Tillerson. This is absurd.

Above all, Diamond’s ruling is shaped by an elementary insight that escaped Aiken:

Plaintiffs … effectively ask me to supervise any actions the President and his appointees take that might touch on “the environment.” … Because I have neither the authority nor the inclination to assume control of the Executive Branch, I will grant Defendants’ Motion. [Emphasis added.]

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