The E-mail Commentary from Eco-Justice Ministries
A Difficult Week of News
Last week, I wrote about climate grief Later on that Friday afternoon, my own grief levels went up several notches with news that the Ninth Circuit Court of Appeals decided against Our Children's Trust in a critical procedural action.
For two and a half years, I've celebrated the Our Children's Trust lawsuit, Juliana v. United States, as one of the most substantial and hopeful avenues for climate action in the United States. (Eco-Justice Ministries has supported the effort with "friend of the court" filings.) Last week, after over seven months of deliberation, a three-judge panel, in a 2-1 split, decided that the courts cannot provide the youth with a remedy for their climate change injury.
The majority opinion "reluctantly concluded that the plaintiffs' case must be made to the political branches or to the electorate at large." Judge Josephine L. Staton issued a powerful dissent, which I'll be discussing below.
The legal team for Our Children's Trust will be asking the full court of the Ninth Circuit to review this decision. The chief legal counsel said, "The Juliana case is far from over" -- which keeps my grief at this news within manageable levels.
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To briefly recap Juliana, in 2015, 21 youth filed a constitutional climate lawsuit against the US government. Their complaint asserts that, through the government's affirmative (knowing and intentional) actions that cause climate change, it has violated the youngest generation's constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.
Ever since that filing, the US government -- in both the Obama and Trump administrations -- has been fighting hard to keep the case from going to trial. The hearing last June was to determine if the youth had "standing" for their constitutional complaint, and whether the case could finally be heard in court.
In last week's decision, the three judges agreed with almost all of the assertions in the youth's filings. (The full decision is available as a PDF document, and I encourage you to at least look at some key sections. The two-page summary of the decision begins on page 4; the majority opinion starts on page 11; the vigorous dissent from Justice Stanton starts on page 32.)
In addition to affirming scientific evidence about climate change, the judges found that "the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government's contribution to climate change was not simply a result of inaction." (summary, pp. 4-5)
The judges split, though, on whether -- if the youth eventually won at trial -- courts would be able to craft a settlement that would make any difference. The youth have asked for a judicial order requiring the government to develop a plan to phase out fossil fuels, and draw down excess atmospheric CO2. The two-judge majority wrote, "Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs' impressive case for redress must be presented to the political branches of government." (p. 11)
That's where Judge Stanton disagreed. Her dissent argues that, in cases of such exceptional importance, the courts must take on such take on such hard decisions, even if they can only provide a partial solution. She wrote, "the right at issue is not to be entirely free from any climate change. Rather, plaintiffs have a constitutional right to be free from irreversible and catastrophic climate change." (45) She continues,
The majority portrays any relief we can offer as just a drop in the bucket. In a previous generation, perhaps that characterization would carry the day and we would hold ourselves impotent to address plaintiffs' injuries. But we are perilously close to an overflowing bucket. These final drops matter. A lot. (45-46)
Indeed, Ms. Stanton opens her dissent with a statement which show that she understands the real threat of catastrophic climate change. "Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation's willful destruction." (p. 33) That brought to my mind what Elizabeth Kolbert wrote in the New Yorker in 2005: "It may seem impossible to imagine that a technologically advanced society could choose, in essence, to destroy itself, but that is what we are in the process of doing." It is not only that the 21 youth will suffer actual damages from the continued progression of climate chaos. The stability and continuity of the nation itself is at risk.
Stanton does not write kindly of the two other judges on the panel. "The majority laments that it cannot step into the shoes of the political branches, but appears ready to yield even if those branches walk the Nation over a cliff." (49)
In 2017, when I first wrote about Our Children's Trust, I said, "In today's political climate, a strong legal decision may be one of our best openings in fighting for climate justice." The majority in this decision, though, say that the courts cannot make such a decision. Stanton notes, "As the last fifty years have made clear, telling plaintiffs that they must vindicate their right to a habitable United States through the political branches will rightfully be perceived as telling them they have no recourse."
On most points, the decision from the Ninth Circuit supports the standing of the youth to take their case to trial. The dissent makes it very clear that there are substantial legal grounds for saying that a significant and constitutional settlement of the Juliana claims is possible. There is realistic optimism that the call for an "en banc" review by the whole Ninth Circuit could be successful.
Kelsey Juliana, the 23-yearold named plaintiff in the lawsuit spoke to all of us immediately after the decision: "STAY HOPEFUL STAY WITH US STAY TUNED STAY IN POWER."
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Also in the past week, of course, the impeachment trial of President Trump has been going on in the US Senate. I've watched a lot of the proceedings, and so far the House managers have presented what seems to me to be a clear, comprehensive and compelling case for the abuse of power by Mr. Trump and his co-conspirators. I am distressed that the caucus of Republican Senators still seems to be holding an unbroken front against conviction.
These two constitutional lawsuits have taken very different directions. The decision from the Ninth Circuit acknowledged all the claims of the Juliana lawsuit, and the majority reluctantly concluded that the court did not have the authority to take sufficient action for such an extreme crisis. The Senate majority, however, seems to be denying that the evidence matters at all, and they seem to be holding that these constitutional violations are not worthy of action.
While I disagree with the Ninth Circuit, and hope for a different decision from the whole Circuit, I respect their serious consideration, and their acknowledgment of the facts. I am horrified by what I've seen from the majority in the Senate so far in that trial. I am angry, distressed and afraid by the way their apparent partisan self-interest is overwhelming evidence and constitutional mandates.
In both situations, though, I am grateful that these difficult questions have come to trial. The evidence has been presented, and the constitutional claims have been made. History -- or move vividly, "our children and grandchildren" -- will judge us. With the record from both the Juliana decision and the impeachment trial, we cannot say that we didn't know.
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One other final and very brief note about this week's news. A few days ago, the Bulletin of the Atomic Scientists reset their "Doomsday Clock" for 2020. The clock now holds at 100 seconds to midnight, 20 seconds later than last year's position, and the most urgent setting since this iconic marker began in 1947.
Many factors were involved in moving the setting closer to the symbolic moment when humankind could annihilate itself, including a global failure to confront nuclear tensions and climate change.
It has been a difficult week of news, with Juliana, the impeachment trial, and the Doomsday Clock. Things are not going well on this planet.
As people of faith and conscience, this time of crisis should motivate us to ever greater action and involvement, not push us into retreat.
Call your Senators. Speak up about the climate crisis. Keep informed and act.
"STAY HOPEFUL STAY WITH US STAY TUNED STAY IN POWER."
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