One act in the nationwide climate-litigation sideshow recently got the proverbial hook from a Pennsylvania-based federal judge. From chambers that are fittingly just around the corner from Independence Hall in Philadelphia, Judge Paul S. Diamond refused to “make the Executive a subsidiary of the Judiciary,” which is exactly what the plaintiffs in Clean Air Council, et al. v. United States sought.
Over the past ten years, plaintiffs’ lawyers, environmental activists, and government officials have filed many forests-worth of legal complaints featuring page after page of alarming rhetoric alleging acts and omissions that cause climate change. The suits target both the federal government and private businesses. Plaintiffs have included a coastal Alaskan village, the state of Rhode Island, New York City, and the Boulder County Board of Commissioners.
In Clean Air Council, an activist group and two unnamed minor children claim that actions and inactions by the federal government have deprived them of their Fifth Amendment right to a stable climate. They also argue that the government failed to uphold its common-law public-trust duty to protect the atmosphere and other resources from climate change. These allegations and novel legal theories mirror those advanced successfully in Juliana v. United States, in which a U.S. District Court for the District of Oregon judge denied the Obama Administration’s motion to dismiss. The government’s persistent efforts to forestall trial in Juliana finally paid off last December, when the Ninth Circuit granted its request for interlocutory appeal (still pending).
In Clean Air Council, not only did Judge Diamond not share his Oregon counterpart’s enthusiasm for long-shot legal arguments, but he was quite pointed in his criticism of Juliana. Before evaluating the substantive issues, however, Judge Diamond held that neither the activist group nor the children had Article III standing to sue. The standing doctrine, he rightly explained, is an essential check that prevents “‘the judicial process from being used to usurp the powers of the political branches.'”
The court first assessed Clean Air Council’s standing, noting that the group “[r]emarkably” failed to allege that the government’s so-called rollback of regulation imposed specific harms on its members. Clean Air Council thus could not establish organizational standing.
Judge Diamond then examined the individual children’s standing arguments, finding that their alleged physical harms (but not their anxiety over climate change) were “concrete” and “particularized.” Those harms were not, however, “actual or imminent” as required under the law. Their alleged harm, the court explained, is predicated on a “contingent chain of events” that render the children’s claims “at best, a less than certain prediction.”
Judge Diamond also found that the plaintiffs’ alleged injuries were not “fairly traceable to the [defendant’s] challenged conduct.” As the court noted, the plaintiffs sustained their alleged injuries “as early as 2011” and the federal actions that supposedly caused those injuries did not commence until 2017. Besides, the plaintiffs could not demonstrate how the administration’s personnel and budgetary decisions caused third parties to increase greenhouse emissions. Judge Diamond listed 12 of the administration’s offending actions, including the President’s decision to appoint a new Secretary of State. “Indeed,” the court remarked, “Plaintiffs seek to depose former Secretary Tillerson. This is absurd.”
The court next turned to the plaintiffs’ Fifth Amendment claims, including the alleged right to a stable climate. Judge Diamond acknowledged the Juliana court’s recognition of this right, but strongly disagreed: “[T]he Juliana court certainly contravened or ignored longstanding authority.” The “scope of the ‘fundamental’ right Plaintiffs invoke,” which requires the court to seize authority over agency web pages, administration hiring decisions, and presidential cabinet appointments, “has no clear limit.”
The plaintiffs’ state-created danger and substantive due process claims fared no better. On state-created danger, Judge Diamond reiterated that third parties emit greenhouse gasses while the government “seeks to regulate that pollution (evidently, to Plaintiffs’ dissatisfaction).” So the state was not creating a danger. Third parties’ role in climate change, the court concluded, also fatally undermined the plaintiffs’ substantive due process claim.
Finally, in addressing the public-trust claim, the court rejected the plaintiffs’ attempt to create, and the Juliana court’s embrace of, “an entirely new doctrine” that would “empower this Court to direct any Executive Branch action related to ‘the environment.'”
“Plaintiffs seek to distort limited doctrines into a means of litigating national policy.”
That concluding statement in Clean Air Council not only sums up the legal flaws in the plaintiffs’ complaint, but also the fundamental shortcoming of the climate-litigation sideshow. This sideshow may please some activist groups’ donors or elected officials’ constituents, but they tread on the separation of powers that guarantee Americans’ freedoms without achieving any actual environmental benefit.
Courts with similar lawsuits on their docket should bear that thought in mind, as should any cities, counties, states, and—we suppose—children, who are contemplating whether to jump on the regulation-by-litigation bandwagon.
Also published by Forbes.com on WLF’s contributor page.