We end 2017 with a look at a trending area of law regarding private actions against parties allegedly responsible for climate change. Earlier this month, in Juliana v. U.S., 217 F.Supp.3d 1224 (2016), a case of first impression, Plaintiffs (youths, both minors and adults, aged from approximately 10 to 21 years old) argued before a three judge panel of the U.S. Court of Appeals for the Ninth Circuit as to why their constitutional climate case against the government of the United States of America and certain named officials should go forward. The Complaint, filed in 2015 in the U.S. District Court for the District of Oregon, asserts that the Government’s affirmative actions caused climate change, thus violating the constitutional rights of Plaintiffs to life, liberty, and property, and failing to protect essential public trust resources.
Not a stranger to a recent slew of climate change litigation, the fossil fuel industry initially intervened in Juliana v. U.S., joining in the efforts by the Government to dismiss the case. In April 2016, U.S. Magistrate Judge Thomas Coffin recommended denial of Defendants’ motions to dismiss. On November 16, 2016, U.S. District Court Judge Ann Aiken upheld Judge Coffin's recommendation and issued an opinion and order denying the motions. In June 2017, Defendants’ interlocutory appeal of that Order was then denied by Judge Aiken and the fossil fuel industry defendants were released from the case. A trial date was also set for February 5, 2018.
In July 2017, the Ninth Circuit Court of Appeals requested attorneys for Plaintiffs to submit a response to the Government's petition for a writ of mandamus. Plaintiffs filed a response and eight amicus briefs were also filed in support of Plaintiffs. At the hearing on December 11, 2017, a lawyer with the U.S. Department of Justice, urged the Ninth Circuit Court of Appeals to block the lawsuit warning that allowing it to go forward could lead to a constitutional crisis pitting different branches of government and officials against one another. Plaintiffs’ position is that government officials and the oil industry chief executives were aware of the causes and effects of climate change, but, nevertheless, implemented policies that perpetuated it. A decision by the panel will be issued in 2018. Regardless of whether or not this particular climate change case goes forward, similar to more conventional cases involving environmental damage, it is likely that the scope of climate change litigation will be expanded by parties seeking to recover from “responsible parties”. One consideration that may impact the life of climate change litigation, however, is the current political climate.
The voting record of the State of New Jersey’s Governor-Elect, Philip Murphy, reveals support for enacting environmental regulations aimed at reducing the effects of climate change. His record includes more than one vote in favor of creating clean energy jobs, achieving energy independence, reducing global warming pollution and transitioning to a clean energy economy. This is likely indicative of the direction on climate change that we will see in this State over the next few years.
On the National level, however, there is no legislative voting record that could potentially point to future actions. The impact of the Trump administration on climate change policy or law is continuing to evolve. The Trump administration has set forth a belief that climate is changing, and, at the same time, there is history of comments questioning man-made climate change. The announcement in June 2017, that the United States would cease participation in the 2015 Paris Agreement on climate change mitigation appears to be a sign of the direction that the administration is headed. Then again, in the U.S. Global Change Research Program Science Special Report issued in November 2017, the U.S. concluded that it is “extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20th century” (i.e., climate change). As a result, the question that really remains is, what should be done to remedy climate change? Climate change litigation may seek to influence policy, but the policymakers have to be open to it.