Supporters of climate litigation are paying close attention to a federal suit filed in Eugene, Oregon. My former classmate Kelsey Juliana is the lead plaintiff among a group of 21 youths who allege that the federal government has violated the Constitution and breached public trust obligations by harming the climate.

Federal courthouse in Eugene, Oregon, is venue for lawsuit filed by 21 youths. Photo credit: Henry Lininger

The U.S. Department of Justice and intervenors from the energy industry have moved to dismiss the Juliana suit. Among other arguments, the defense attorneys have asserted that the case is nonjusticiable because it presents a political question. In other words, the attorneys claim that judicial intervention in climate policy would usurp the functions that the Constitution has reserved for Congress and the executive branch.

On June 9th, the Justice Department repeated those arguments in a brief seeking from the Ninth Circuit Court of Appeals a writ of mandamus – a procedure an appellate court can use in an extraordinary case to reverse a district court’s pretrial ruling. If successful, this strategy would stop the Juliana litigation dead in its tracks. The Ninth Circuit is awaiting briefing and likely will issue its decision this summer.

The stakes are high – not just for the Juliana plaintiffs, but for similar litigants in other jurisdictions. According to statistics reported by the United Nations Environment Programme in May 2017, plaintiffs have filed 654 climate change cases in the U.S. and 230 in other countries.

History of dismissals

Other defendants also have invoked the political question doctrine to defeat climate change suits.

For example, when the Alaskan village of Kivalina sued ExxonMobil and other energy companies for monetary damages resulting from harms caused by climate change, the defendants cited the political question doctrine and said that courts had no business in such matters. So too have the American Electric Power Co. and other energy companies used the political question doctrine to fend off a suit filed by northeastern states seeking injunctive relief for climate-related problems.

In both cases, appellate judges ruled that the plaintiffs could not use the common-law tort system because Congress had created a limited regulatory scheme in the Clean Air Act.

But the Juliana case seems to offer the most promising prospect yet of surmounting the political question doctrine. U.S. District Judge Ann Aiken actually ruled in favor of the Juliana plaintiffs when the Justice Department moved to dismiss. Discovery in that case is proceeding even as the defense attorneys seek a writ of mandamus from the Ninth Circuit.

Boundaries of the ‘political’ doctrine

Is climate litigation unduly “political”? The first step is to determine what the term “political” really means in this context.

One possibility is that the political question doctrine prevents the courts from hearing any case with political implications. At first blush, this interpretation is appealing, because the representative branches, Congress and the executive, seem better suited to handle political issues.

Yet the courts hear controversial, politically charged cases all the time – on questions ranging from abortion to the death penalty to presidential elections – and the mere fact that such cases have political implications does not require dismissal. As Alexis de Tocqueville wrote, “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.”

A narrower interpretation of the political question doctrine is that it requires courts to abide by the separation of powers prescribed in the Constitution. Under this view, the courts violate the political question doctrine only when they take jurisdiction over a matter that the Constitution has committed to either the Congress or the executive branch.

Such an interpretation would enable the Juliana plaintiffs to make a stronger argument than their predecessors had in the Kivalina and American Electric Power Co. cases. Those prior plaintiffs had advanced tort theories under federal common law, and the courts held that the regulations under the Clean Air Act displaced the common law on such matters, denying the courts any jurisdiction to hear the plaintiffs’ claims.

But the Juliana suit presents constitutional claims that fall squarely within the purview of the judiciary. As NYU Law Professor Rachel Barkow has written, the modern political question doctrine recognizes that the courts are the supreme authority on constitutional questions.

All three branches should address climate change

There is some irony in the Trump administration’s insistence that Congress and the executive branch should do all of the federal government’s work on climate matters.

In fact, both of those branches are actually withdrawing from regulation of carbon emissions. Congress and the executive branch have rolled back climate regulations from the Obama era, and the Trump administration has withdrawn the U.S. from the Paris Accord. Climate litigation does not call on courts to usurp the role of the representative branches; rather, this litigation turns to courts as a last resort after Congress and the executive branch have abdicated their responsibilities to limit emissions of greenhouse gasses.

The Juliana defendants err in maintaining that the judiciary needs an explicit constitutional or statutory authorization to address climate-related matters. History has shown that even in the absence of such an express authorization, the judiciary has a duty to vindicate the principles underlying constitutional and statutory provisions. It’s on that very basis that the Supreme Court reached some of its most celebrated decisions on questions of civil rights, privacy, reproductive freedom, and marriage equality.

By contrast, when the Supreme Court has dragged its feet through an excessive preoccupation with separation of powers – as in the Dred Scott decision on slavery, or the Korematsu decision on Japanese internment – history has faulted the Court for failing to provide the proper checks and balances.

In the end, the judicial branch may prove to be uniquely capable of addressing climate-related issues. Long-term problems such as climate change should fall within the jurisdiction of government institutions with long time horizons. Because the president and legislative leaders must run for reelection on short timetables, they tend to focus on short-term matters they see as most salient to the electorate. Federal judges have life tenure, and therefore they may be better able to consider the need for remedial measures that entail short-term sacrifices leading to long-term benefits.

Another important advantage of litigation is that it compels the federal government to consider the climate. As Kelsey Juliana noted in a recent letter to a local newspaper, “Trump can withdraw from the Paris Agreement, but he can’t withdraw from our lawsuit.”

Henry Lininger is a writer based in Eugene, Oregon. He has written articles on environmental topics for the Cornell Journal of Law and Public Policy and for the Duke Environmental Law and Policy Forum. His father, Tom Lininger, a law professor at the University of Oregon, reviewed and helped edit this article.