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The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case[i].

If ever there was a case that called out for judicial intervention and a court to answer the call, it is Juliana v. US and the Ninth Circuit Court of Appeals. And yet, after four and a half years of filings, a divided three-judge panel of the Ninth Circuit Court of Appeals told the 21 young plaintiffs in Juliana, they didn’t have standing to pursue their case. All three judges on the panel were appointed to the federal bench by President Obama.

Over the past two decades, the number of climate-related law cases has been on the rise. Why is not difficult to discern.

The failure of political leaders — particularly at the federal level — to heed the growing body of scientific evidence that demands aggressive action to stem the rise of global temperatures has forced climate activists to seek judicial intervention. The courts are proving difficult to convince, however, for reasons having nothing to do with the science. In fact, the opposite is true. Most of the judges who have heard Juliana and other recent cases, as described below, have expressed a solid belief in the causes and consequences of Earth’s warming and the urgent need to defend against it.

Juliana is one of a group of novel theory law cases. The suits vary in the redress requested and the legal strategies employed. For example, cases like Juliana look to expand the public trust doctrine and make a habitable environment a protected right under the due process clauses of the US Constitution.

The public trust doctrine goes back at least to the Roman Emperor Justinian and is conceptually quite straightforward. It holds that the world around us, e.g., air, water, forests, mineral resources, and animal life, form the corpus of a natural trust. The government, as trustee, owes a fiduciary duty of protection against “substantial impairment” of the air, atmosphere, and climate system, an affirmative duty to restore its balance, and courts have a duty to enforce these trust obligations.

Other of the novel legal approaches are based on common law nuisance (tort) theories. The case of the County of San Mateo v. Chevron Corp is one of mul-tiple suits by states, counties, and cities seeking restitution from major oil companies for environmental damages attributable to the exploration, extraction, and combustion of fossil fuels.

These cases follow in the footsteps of the tobacco suits of the 1990s. They allege that the oil companies have long known the climate-related consequences of burning oil and gas but have, nevertheless, continued selling and supporting their use. If successful, the defendant companies would be required to pay tens of billions of dollars in damages to the plaintiff jurisdictions.

A third tactic is found in New York v. Exxon Mobil, in which the plaintiff alleges that the company has defrauded its investors. In these actions by cities and states, the defendants are accused of keeping two sets of books. The set shown to potential investors is said to discount regulatory compliance costs — while the second set, showing the true costs, is used for internal corporate planning and operations.

The success record for all these novel theory cases is quite low, as would be expected of any untested strategy. In addition to the recent Juliana decision, the New York case was dismissed by the state court in December 2019.

The County of San Mateo case, along with five similar California cases, is scheduled for oral arguments before the Ninth Circuit Court of Appeals for February 5, 2020. It is the same court that issued the latest Juliana decision. It’s unlikely that the tort cases will find favor on appeal.

The Ninth Circuit is the largest appellate court with 29 judges. It has long been considered the least favorite of conservatives. Sometimes referred to as the nutty Ninth. President Trump is said to despise it, calling it a thorn in his side.

However, things are changing in the Ninth Circuit and elsewhere throughout the federal judiciary. At the start of Trump’s presidency, Democratic-appointed judges held an eleven-seat majority. Trump has whittled that number down to a three-seat majority, having made nine confirmed appointments.

Hands down, the most lasting impact of the Trump-era on the nation’s environment will be his judicial appointments. Since taking office, he has nominated 239 individuals to federal judgeships — 187 have been confirmed. More are on the way.

There were 80 vacancies in the federal judiciary, as of January 2, 2020. Of those vacancies, 35 have pending nominations. By any calculation, Trump will have appointed one of every four judges on the federal bench, including at least two justices of the US Supreme Court, by the end of his first term. All will have been chosen for their strict constructionist views of the Constitution.

Chief Justice Roberts may be right in his claim that there are no Obama or Trump judges. There are, however, judges and justices who reflect conser-vative and liberal points of view when it comes to interpreting laws and the Constitution.

The courts send their sympathy

The Juliana plaintiffs were denied standing because the court believed itself incapable of redressing the harms done to them. A grant of standing is based on affirmative answers to three questions: has the petitioner been harmed; was the harm the result of the defendant’s actions; and, is there anything the court can do to make the plaintiffs whole?

The cases based on the law of torts are likely to be dismissed on appeal for the same reason as the trial judge, William Alsup, denied the County of San Mateo’s claim that oil companies must be made to pay for the damages done their jurisdictions. Judge Alsup placed the blame not on the defendant oil companies but on society itself:

Would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?

Judge Alsup never for a moment doubted what climate scientists have concluded.

The New York securities fraud case was dismissed because the court judged that the NY Attorney General failed to establish by a preponderance of the evidence that ExxonMobil made any material misstatements. It is still too early to know whether a similar suit brought against ExxonMobil in Massachusetts will come to the same end.

The litigants are now arguing over whether a federal or state court has juris-diction. ExxonMobil is contending that the Massachusetts attorney general — in conjunction with “plaintiffs’ attorneys, climate activists, and special interests” — was engaged in a plan “to force a political and regulatory agenda that has not otherwise materialized through the legislative process.” There’s more than a grain of truth in what ExxonMobil is contending.

There are obvious differences between the types of novel theory lawsuits. What unites them is the pursuit of a back door solution to the climate crisis. A solution that the courts appear most unwilling to provide.

Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government[ii].

Back where it all started

And, so — climate activists are being brought full circle. The reason that the courts have been increasingly looked to for help is that the political branches of government — executive and legislative — have failed to act on the body of evidence.

The novel law cases are not without value. Their evidentiary records clearly show that fossil fuel companies and even the Trump administration are fully aware and accepting of what the scientists are saying.

Twenty years of gridlock have squandered the time that would have been better used for steady — dare I say progressive — enactment of federal policies and programs to effectuate the transition to a just, low-carbon, and sustainable economy. A transition that would have led the world by example and made American technology the dominant economic force in the global economy. Others have now stepped into that role.

Having wasted decades, the task at hand is more urgent and more demanding of rapid large-scale action that only the political branches of government are capable of taking. To paraphrase Judge Alsup — the solution to the climate crisis will not be found in the jury box of a courtroom but at the ballot box in every community.

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[i] Judge Wm Alsup, County of San Mateo v. Chevron Corp.

[ii] From the majority opinion in Juliana v. US. (see also here)