The Ninth Circuit put the brakes on a landmark climate change suit against the federal government filed by 21 young people, finding that while a factual dispute over whether the government knowingly created climate change by subsidizing the fossil fuel industry exists, courts lack the authority to craft climate policy that ensures a planet capable of sustaining human life.
The young people, led by Kelsey Rose Juliana, sued the government in 2015, claiming it had affirmatively created an imminent climate catastrophe by ignoring the warnings of its own scientists since the 1960s that continuing policies and subsidies promoting the fossil fuels industry would lead to disaster.
Government lawyers under both the Obama and Trump administrations argued the case should be dismissed because the Constitution doesn’t guarantee the right to a livable climate. The Trump administration added the argument that suing the U.S. government was misplacing the blame, because climate change is a global issue.
The case was set to go to trial in federal court in Oregon, but the government filed an unusual appeal in advance of a lower court ruling and asked the Ninth Circuit to dismiss the case.
On Friday, a three-judge panel “reluctantly” agreed, finding that, even assuming the judges are able to recognize such a constitutional right, the courts can’t give the kids what they seek: an order requiring the government to phase out fossil fuels and draw down atmospheric carbon dioxide, thereby ensuring a livable planet.
Writing for the panel, U.S. Circuit Judge Andrew D. Hurwitz compared the situation to a song from the 1960s that warned humanity that it was “on the eve of destruction.”
“The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer,” Hurwitz wrote in a 32-page opinion. “A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”
But the Barack Obama appointee said the courts can’t write climate policy; that task falls to the U.S. Senate, the House of Representatives and the president.
“Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Hurwitz wrote.
He said the kids must take their case to the political branches or to the electorate at large, adding:
“That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
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