Is a federal judge trying to set climate policy with the ‘Juliana’ case?

The ongoing and widespread effort to persuade courts to mandate legislative and executive action to combat climate change has taken a new turn in the U.S. District Court for the District of Oregon. Having been ordered by the Ninth Circuit Court of Appeals to dismiss for lack of standing a case brought six years ago, District Judge Ann Aiken thumbed her nose at the appellate court and ordered the plaintiffs and the government to convene a settlement conference.  

That conference commenced last Friday. But if the plaintiffs lack standing to pursue the lawsuit, what grounds is there for a settlement that could effectively override policies already established by the political branches of the government?

The lawsuit, Juliana v. United States, is one of numerous actions brought by climate activists frustrated by the failure of Congress and federal regulatory authorities to enact what the litigants believe are necessary measures to reduce greenhouse gas emissions. Most of those lawsuits have been dismissed for failing to raise questions justiciable in a court of law. The courts generally have ruled that the plaintiffs raise policy questions better addressed by the political branches of government, that the alleged injuries have multiple causes and are shared by the population in general, and that there is no remedy a court can provide.   

In Juliana, the plaintiffs claimed that a combination of the government’s actions and inaction on climate change resulted in the violation of their rights under the Fifth Amendment due process clause, the 14th Amendment equal protection clause, the Ninth Amendment and the common law public trust doctrine. They sought both declaratory and injunctive relief.

Contrary to what most courts have done, in November 2016 Judge Aiken denied the government’s motion to dismiss after concluding that the plaintiffs have standing and their complaint does not raise a nonjusticiable political question. She opined at some length on the merits of the plaintiffs’ constitutional and common law claims, leaving little doubt about where her sympathies lie. After much back and forth between the District Court and the Ninth Circuit Court of Appeals, the appellate court ordered the District Court to dismiss the case. The plaintiffs lack standing, said the court, and therefore must press their claims in the political branches of the government. Subsequently, in February of this year, the appeals court denied plaintiffs’ petition for rehearing en banc, seemingly ending the case.

But as far as Judge Aiken is concerned, the case is not over. Despite the Ninth Circuit’s order to dismiss the case, she ordered the parties to convene a settlement conference before a magistrate judge. But what is to be negotiated at this mandated conference?

Judge Aiken declared in her 2016 opinion, denying the government’s motion to dismiss, that the plaintiffs have a fundamental right “to a climate system capable of sustaining human life.” In the conference, the plaintiffs surely will view that question as decided and demand policies designed to remedy the alleged rights violations. The government will have two options: deny that the right exists, in which case no settlement is possible, or accept that the right exists and negotiate over appropriate policies.  

But in a democratic republic such as the United States, policies cannot be established in a judicial settlement conference. The plaintiffs represent one interest among dozens of others not represented in the conference. That is why 18 states immediately moved to intervene in the settlement conference. 

Government policies on carbon emissions are no less political questions in a settlement conference than they are in a trial. Congress and several administrations have considered these questions and implemented existing policies based on input from across the political spectrum.  Even with judicial blessing, a policy agreed to by the government and a single affected interest has no democratic legitimacy. The Ninth Circuit Court of Appeals should renew its order to dismiss and conclude the long saga of the Juliana case.

James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.