The Ninth Circuit Court of Appeals heard oral arguments in the Juliana v. United States case this week. The court will issue an opinion in the coming months that determines whether the case will go to trial at the federal District Court level. If the Ninth Circuit holds that the case should go to trial, the government defendants likely will appeal that opinion to the Supreme Court, further delaying the case’s outcome. Yesterday’s oral arguments were part of the government’s extensive attempt to have the case dismissed before trial, which has failed thus far.
This case is important because of its implications on how the government addresses climate change, which of course effects rising sea levels and ocean acidification, amongst other things. If the 21 youth plaintiffs win the case and obtain their requested remedy, the government will be ordered to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2. Because of the United States’ substantial share of GHG emissions (around 25% of total worldwide emissions since 1751), this would be an unprecedented and important step in addressing global climate change.
The plaintiffs state that the federal government has known about the effects of climate change since at least the Nixon presidency and that the government has affirmatively allowed climate change to occur. The plaintiffs claim that the government’s actions, such as permitting and subsidizing the use of fossil fuels, have significantly contributed to climate change, which has violated the plaintiffs’ constitutional and public trust rights.
As to the constitutional claims, the plaintiffs allege that the government has infringed on their constitutional rights of life, liberty, and property by deliberately allowing atmospheric CO2 levels to rise to unprecedented levels, causing extreme weather events, sea-level rise, and ocean acidification. One plaintiff, nineteen-year-old Journey Zephier, attests that harms to his health, personal safety, cultural practices, economic stability, food security, and recreation interests have occurred due to climate destabilization and ocean acidification. Journey lives in the small town of Kapaa on the Hawaiian island of Kaua’i. He says that with climate change, his town will be mostly underwater by the end of the century, and he is already seeing many impacts on his island in the form of shrinking beaches, dying coral reefs, and drought on an island "which used to be one of the wettest places on earth.”
For the public trust claims, the plaintiffs allege that the government has violated its duty as trustee of public trust resources by failing to protect the atmosphere, water, seas, seashores, and wildlife. A number of the plaintiffs' injuries, which they state are caused by climate change, relate to the effects of sea-level rise, ocean acidification, and rising ocean temperatures. For instance, on the Oregon coast, fourteen-year-old plaintiff Sahara V. enjoys climbing rocks and sand dunes, swimming, and tidepooling to see marine life. Sahara's enjoyment of these activities is being increasingly harmed by sea level rise, greater erosion, enhanced ocean acidification, and increased water temperatures. Additionally, twenty-three-year-old Kelsey Juliana and twenty-two-year-old Alex Loznak claim that an important part of their diet comes from marine and freshwater sources, such as salmon, cod, tuna, crab, mussels, and clams. They state that these food sources are negatively impacted by ocean acidification, warming, and sea level rise caused by the government’s actions.
Experts in the field, such as UCLA environmental law professor Ann Carlson, note that this is a “novel legal claim.” The Juliana plaintiffs are the first to argue that there is a constitutional right to a safe and livable climate. Experts say it’s an ambitious and unprecedented tactic, and many are surprised that the case has made it this far. If the youth plaintiffs win the case and obtain their requested remedies, the court will not only declare that their constitutional rights have been violated, but will also order the federal government to develop a plan “using existing resources, capacities, and legal authority, to bring their conduct into constitutional compliance.” Potential required efforts could include phasing out greenhouse gas emissions within several decades, and drawing down excess atmospheric CO2 via reforestation.
Learn more about how climate change affects our ocean and coastal resources and why the outcome of this case matters by checking out Surfrider’s climate change website and our Climate Change Activist Toolkit.
Photo courtesy of Lorie Shaull