Climate Change Comes to the Ninth Circuit: Juliana v. U.S. Tests a Novel Due Process Claim with Far-Reaching Implications for Environmental Litigation

By Douglas A. Fretty

Douglas Fretty is an associate at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., where he practices civil and appellate litigation.

On June 4, 2019, a Ninth Circuit panel heard oral argument in the closely-watched environmental case Juliana v. U.S. (No. 18-36082). The 21 plaintiffs in Juliana, ranging in age from 12 to 23, seek an order compelling a roster of federal agencies to "draw down" U.S. fossil-fuel consumption in this century, to avert the worst effects of climate change. Represented by the environmental group Earth Guardians, plaintiffs rest their case on an as-yet unprecedented theory: that the executive branch’s promotion of fossil-fuel exploitation constitutes a "state-created danger," violating the young plaintiffs’ substantive Due Process right to "a climate system capable of sustaining life."

The plaintiffs survived their first hurdle when District Court Judge Ann Aiken (D.Or.) denied the federal defendants’ motion to dismiss and motion for summary judgment, and ordered a 50-day trial on the merits. (Juliana v. U.S. (D.Or. 2016) 217 F.Supp.3d 1224; Juliana v. U.S. (D.Or. 2018) 339 F.Supp.3d 1062.) But the stage was set for the current appellate battle when the Supreme Court denied as premature the government’s application for a stay of the lawsuit, while describing the "breadth" of plaintiffs’ claims as "striking" and stating that "the justiciability of those claims presents substantial grounds for difference of opinion." (U.S. v. U.S. Dist. Ct. for Dist. of Or. (2018) ___ U.S. ___ [139 S. Ct. 1].) And in February 2019, the district court in Clean Air Council v. U.S. (E.D.Pa. 2019) 362 F.Supp.3d 237, 250-251, rejected the same substantive Due Process theory that the Juliana plaintiffs assert.