2020 Environmental Real Estate IssuesOn January 17, 2020, the United States Court of Appeals for the Ninth Circuit dismissed the case brought against the federal government by several young persons as plaintiffs, alleging violation of constitutional rights from federal action contributing to climate change.  Approximately one year ago, the 9th Circuit accepted an interlocutory appeal of the district (trial level) court’s ruling denying the federal government’s request for dismissal. See [Link to January 14, 2019 Alert: Ninth Circuit May End “Youth” Climate Suit]

In dismissing the case, this three-judge 9th Circuit panel, with one dissent, held it was beyond the power of any court to order or supervise the remedial plan requested by the plaintiffs, because any effective plan would require complex policy decisions entrusted to the discretion of the executive and legislative branches.

Plaintiffs Claimed Climate Change Violated their Constitutional Rights

The plaintiffs claimed the federal government, through actions and inactions, deprived them of their substantive constitutional right to a climate system capable of sustaining human life.  The 9th Circuit did not decide if such a right existed but held a court could not address its deprivation even if it did exist, because courts do not have the power to consider matters if the injury is not substantially likely to be redressed within a court’s power.

Court Cannot Order Comprehensive Scheme to Decrease Fossil Fuel Emissions

The 9th Circuit determined that to give the plaintiffs the remedy they seek, a court would need to make policy decisions entrusted to the executive and legislative branches, such as how much to invest in public transit and how to transition to renewable energy.  Doing so would inevitably require courts to substitute their judgment for that of the other branches in a way not allowed by the Constitution’s separation of powers.

Dissent Would Have Allowed the Case to Proceed

The dissenting judge, saying the Constitution does not condone the Nation’s willful destruction, would have allowed the case to proceed in the trial court.  According to the dissent, “the government bluntly insists it has the absolute and unreviewable power to destroy the Nation.”  While not claiming every environmental harm rises to a constitutional right, the dissent sees a constitutional right in this case, redressable by the courts, because the injury is irreversible and catastrophic.

For a copy of the majority opinion and the dissent http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf