They threw up their hands: observations on the US Ninth Circuit Court of Appeals’ unsatisfying opinion in Juliana v United States

Abstract

Juliana v United States is an especially important climate crisis case in which 21 young people, a non-profit environmental non-governmental organisation and a ‘representative of future generations’ sued numerous federal government officials on the basis of various constitutional claims and the public trust doctrine. The lawsuit sought to compel the preparation and implementation of a detailed federal plan to curb climate change. The plaintiffs won a surprising victory in a United States District Court, where the court denied a defendants’ motion to dismiss. However, they subsequently suffered a defeat when a majority of a three-judge panel of the US Court of Appeals for the Ninth Circuit ruled that they lacked standing to sue. This article examines the federal courts’ treatment of the Juliana case and analyses the broader implications of their decisions. In particular, this piece emphasises the Ninth Circuit's unfortunate misapplication of the standing to sue doctrine, along with the inherent shortcomings of that doctrine in meritorious environmental public interest litigation.

Keywords:

• Climate change
• climate crisis
• standing to sue
• right to clean climate

Notes

1 Juliana v United States, First Amended Complaint, 10 September 2015 https://static1.squarespace.com/static/571d109b04426270152febe0/t/57a35ac5ebbd1ac03847eece/1470323398409/YouthAmendedComplaintAgainstUS.pdf accessed 8 March 2020.

2 Juliana v United States, Opinion and Order, 10 November 2016 https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf accessed 8 March 2020.

3 See Juliana, supra note 2, Ninth Circuit summary of District Court opinion at 12.

4 United States v United States District Court for the District of Oregon, 30 July 2018 www.supremecourt.gov/docket/docketfiles/html/public/18a65.html accessed 8 March 2020.

5 Juliana v United States, 17 January 2020 https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e22101b7a850a06acdff1bc/1579290663460/2020.01.17+JULIANA+OPINION.pdf accessed 8 March 2020.

6 Juliana, supra note 2 at 32.

7 Juliana, supra note 2 at 14.

8 Juliana, supra note 2 at 34.

9 Juliana v United States, Petition for Rehearing En Banc Plaintiffs-Appellees, 2 March 2020 https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e5e7f662a0eb67cc5abb51a/1583251303582/DktEntry+156+Petition+for+Rehearing+En+Banc.pdf accessed 8 March 2020.

10 Juliana, supra note 2 at 25.