Federal Court Rules In Favor Of Today’s Children

[ by Charles Cameron — further education & elucidation in matters scientific and legal are welcome ]

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Tablet DQ generations

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Full disclosure: Forbes‘ headline in its entirety reads Federal Court Rules On Climate Change In Favor Of Today’s Children — and that’s not a bad intro to the topic of this quite exceptional ruling.

Other reading:

  • Cotchett, Pitre & McCarthy, Victory In Landmark Climate Case
  • US District Court for the District Of Oregon, Kelsey Cascade Rose Juliana, et al v USA, et al
  • Scientific American, Exxon Knew about Climate Change almost 40 years ago
  • 5 comments on this post.
    1. zen:

      I’ll take a wild guess and say that a part time assistant judge doesn’t understand or chose to ignore how sovereign immunity and tort normally work in favor of his political convictions. Akin to me suing the state department for negligence in causing 9/11

    2. Ornamental Peasant:

      I would disagree with zen. Though the concept of “waste” is nowhere mentioned in the judgment this proposed action is in both form and substance very similar to an action of “Waste” brought by a revertioner against a current tenant which have a long history in English Real Property Law pre-dating the United States, and which in the years following acquired a particular flavor in the United States by incorporating the standard of ‘reasonableness’ to be determined by a jury.
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      One could argue also that under the IX amendment the standing to bring such an action for ‘Waste’ against the Federal Government is one of the ‘rights retained by the people.’ (I am well aware that many but not all distinguished commentators have argued that the IX Amendment is meaningless.)

    3. zen:

      Hi Ornamental
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      Regarding common law on real property and “waste”, that is interesting but this case still involves suing the sovereign for failing a priori to take specific regulatory actions that may be well outside the scope of the powers delegated to the executive by statute – unless we assume the USG can function like GOSPLAN. Aside from the breathtaking claim of the plaintiff here there is the basic issue that the sovereign as a rule, opts not to be sued except in relatively narrow circumstances. I’m more sympathetic to your 9th amendment argument but most Federal judges are not.

    4. Ornamental Peasant:

      Zen — I really am puzzled why you believe the case is in Tort and that issues of sovereign immunity arise. I have put the fill links below. You may not have read the full ‘Findings and Recommendations’ all the Magistrate Judge is saying is that, assuming all facts are as stated by the Plaintiff, there are potentially some justicialble issues arising at some places in Oregon. He is certainly not agreeing in full with the plaintiffs full analysis nor with their proposed remedy.
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      The full complaint by the plaintiffs is here. (The document is 97 pages, most relevant are p. 84 – 95, #277 -end). There is a summary on the Columbia Climate Law blog, which in its second half analyzes the legal hurdles.
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      The hearing was for a motion for dismissal, this is the Justice Department’s ‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS‘. (Note they are not arguing immunity but the prior issue that the Plaintiffs have no stated cause of action in American Law and therefore the suit should be dismissed. I have not posted a link to the Memorandum of the intervening third parties which repeats the same but in less detail and with less elegance.)
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      The Magistrate Judge emphasized that, on a preliminary motion to dismiss, he was accepting all the complaint’s allegations as true — this is standard procedure. Among his recommendation are that:-

      “A substantive due process claim has been adequately pled.”
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      “Plaintiffs allege that the defendants’ action in this case has created a life-threatening situation and that defendants have willfully ignored long-standing and overwhelming evidence of that impending harm to the young and future generations.”
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      “At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon. Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent.”

      —ie de minimis, but still sufficient if all facts found to be as stated by the plaintiffs for there to be some try-able issue.
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      Full text of “Findings and Recommendations, with Order“.
      Columbia Climate Law blog summary post.
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      The issue of ‘sovereign immunity’ has not been raised in argument by the plaintiffs or the US and neither has the issue of a Tort — therefore neither have been ‘ignored’ by the Judge, whatever his private political convictions might be. Judge Thomas M. Coffin, a former assistant US Attorney, who retired February 25th 2016, had served full time since 1992.

    5. Grurray:

      “The case singles out the recent federal approval of the Jordan Cove Liquefied Natural Gas (LNG) energy project proposal in Coos Bay, Oregon, which serves as a specific and local example of a fossil fuel extraction project that would infringe on the plaintiffs’ constitutional rights. In the press release by Our Children’s Trust, 18-year-old plaintiff and Oregon resident Alex Loznak detailed his injury with respect to the Jordan Cove project:”
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      I can see how winning the motion for dismissal can be a stepping stone to further success, but they still have a long way to go before the ‘Mission Accomplished’ banner comes out. Two LNG terminals have been running on Mexico’s Pacific Coast for the past decade, another has been operational in Alaska since 2014, and four more are currently under construction in British Columbia. It looks like they have some work to do if they don’t just want to push their grievances over the borders.
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      The Court cites some interesting precedents for the jurisdiction problems. While acknowledging that only 25% of CO2 emissions originate from the the US (and it’s probably actually less than that), they cite Urgenda Foundation v. The State of The Netherlands from the Hague District Court as evidence that a legal ruling will have some impact stating, “Netherlands should take the lead in this”.
      Unfortunately, the Netherlands or any other Western country have had little influence so far on China, India, the Middle East, and Africa who together now account for the majority of CO2. That’s not much to hang their hats on.
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      Setting aside this problem of limited jurisdictions, the constitutional claims are all dependent on the core issue which is whether not the EPA has power to regulate greenhouse gas emissions under the Clean Air Act. All the plaintiffs complaints are based on this assumption. The court cites Massachusetts v. Environmental Protection Agency 2007) as justification that it does. Despite numerous legal challenges including another this summer, the matter is settled for now, and the EPA is currently regulating CO2 emissions.
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      For this lawsuit to ultimately be successful they’ll have to further argue the degree of regulation is insufficient. Just looking at the mounds of information volleyed about from experts against each other from both sides, that will be a difficult hurdle. They’ll have to present scientific evidence of the impact of specific levels of emissions. Preponderance of Evidence/Balance of Probabilities in civil suits means they’ll have to prove 51% of the evidence supports their claims. If they get to a point where probabilities need to be assigned to specific evidence they’ll quickly run into a lot of problems because under accepted scientific methods that will be impossible.