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The kids lost this round in federal court. What does this mean for suing Big Oil?
Not all climate lawsuits are the same, guys.
“When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
- Judge Josephine Staton in her dissent re: Juliana v. U.S. dismissal.
The legendary lawsuit, Juliana v. U.S., charged the United States government with affirmatively acting to accelerate climate change and thus endangering the country’s young people by infringing on their right to a safe climate.
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Now that that’s out of the way…
Last Friday, Juliana v. U.S. was dismissed — but the court doors are far from closed when it comes to over a dozen other lawsuits seeking accountability for the climate crisis.
Twenty-one youth plaintiffs argued that by deliberately and knowingly pursuing policies that made climate change worse, the federal government is violating their constitutional right to a “climate system capable of sustaining human life” (among other rights too)— leaving a dangerous and chaotic world for generations to come.
On January 17th, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 to dismiss the case. While they didn’t reverse the the lower court’s finding that the 5th Amendment provides the right to a livable climate, they “reluctantly” determined that the courts did not have the authority to issue an order mandating the policies and remedies the plaintiffs sought (that is, a federal plan to reduce emissions and stabilize the climate).
The dissenting opinion, from District Court Judge Josephine Staton, delivered a blistering rebuke of the government's argument:
“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses,” she wrote. "Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation."
(Thank you, Judge Staton. You SAID it.)
But don’t despair just yet: Our Children’s Trust, the group representing the plaintiffs, has vowed to appeal the ruling to the entire Ninth Circuit.
And though the outcome wasn’t the one we wanted, the court’s ruling reinforced the case for urgent climate action in a way that can’t be ignored. Even the majority acknowledged the devastation that climate change is causing — and that kids like the plaintiffs (and generations to come) are getting shafted.
Lead plaintiff Kelsey Juliana speaks at a press conference at the Supreme Court.
For the first time, a federal appeals court made abundantly clear that young people and communities are suffering from the damages caused by climate change, and that these damages are actionable.
The majority wrote that they were thoroughly persuaded that young people face grave risk to their lives and livelihoods from the climate crisis — and that plaintiffs “made a compelling case that action is needed.” The issue here is that they didn’t believe they had the power to order that action. But whether they intended for it to or not, the ruling lays fertile ground for other climate lawsuits, like those seeking to hold fossil fuel companies accountable for financial damages.
But doesn’t this mean that the courts are the wrong place to talk about climate damages?
Not by a long shot.
The legal theory at the heart of Juliana v. U.S., which sought to establish a constitutional right to a safe climate, was new and untested.
But the theory that private companies should pay for damages their products caused the public, or the “polluter pays” principle, is not new at all.
It is centuries old and has been used against other major industries, like Big Tobacco and Big Pharma, and it’s the theory behind climate cost recovery suits filed by the State of Rhode Island and 15 other entities including New York City, San Francisco, Baltimore. Our courts exist to help people recover losses when they’ve been wronged illegally, and that’s exactly what these suits are asking them to do.
Juliana v. U.S. asked the courts to order dramatic federal policy changes to address the climate crisis.
Climate cost recovery cases seek compensation from fossil fuel companies, and no action whatsoever from the federal government.
These cases have everything to do with accountability and fairness for communities struggling to adapt to climate chaos because of Big Oil’s actions, and nothing to do with asking the federal government to reduce greenhouse gas emissions or transition our economy away from fossil fuels (however much that’s needed).
The Juliana plaintiffs sued the government, not the industry.
Local governments and attorneys general across the U.S., on the other hand, are suing major fossil fuel companies for lying about the dangers they knew their products would unleash.
The industry keeps insisting that these cost recovery suits are trying to set climate policy through the courts, and that Congress, not the courts, is the appropriate place for that work.
As with all good disinformation, this message packages some truth within a lie. Of course Congress is the place to set climate policy. No one, and certainly not these cities and counties, is arguing otherwise. But decisions about who should pay for the damages and how much are best decided by the courts, as they always have been.
This prospect is terrifying to fossil fuel companies. They’re afraid of having their decades of utterly corrupt behavior and heavily financed deception campaigns revealed to the public. And they’re afraid that, if the cases do succeed, they will finally have to pay up.
It’s important to remember that it took dozens of cases before the first U.S. court ruled against Big Tobacco for their disastrous and deceptive business practices. Like New York State’s securities fraud case against Exxon, which was dismissed in December, the Juliana suit has made a critical argument for climate accountability, but it is not the end of the road by any stretch. And there are crucial differences between those cases and the climate liability lawsuits that are still working their way through the courts. With more and more governments taking the fossil fuel industry to court, it’s only a matter of time until communities suffering from the damage these companies caused finally receive some measure of justice.
tl;dr: the fight continues.
ICYMI News Roundup
Amidst rising temperatures and seas, conservative states are being forced to seek billions in emergency funding to prepare. But they are still refusing to name the problem, climate change, for what it is.
Attorneys general in Kansas and Florida are trying to make it illegal for local governments to take big corporations to court to recover costs from harms they knowingly caused. That includes Big Oil, of course.
Have you been following Amy Westervelt’s true-crime podcast on climate denial, Drilled? (If not, you really should). If so, we have good news: Amy has collaborated with other journalists, editors and producers to host an entire news site devoted to climate accountability. From the website of Drilled News:
“Climate accountability — investigating the various drivers of delay on climate action—is critical to understanding and addressing climate change. Drilled News brings together a handful of print and audio reporters who have been on this beat for years, and we make our reporting available to a broad mix of national outlets as well.”
We hope you check it out. Until next week!