Friday, October 12, 2018

Dutch court upholds dike against climate change, while Trump Administration seeks to stop climate-change 'trial of the century' in Oregon

"Little Dutch boy" at Madurodam, The Hague,
by Kara van Malssen (CC BY-NC-SA 2.0)
On Tuesday, an intermediate appellate court in the Netherlands upheld a verdict against the government demanding more state action to curb carbon emissions and combat climate change.  The court's decision (unofficial English translation) in favor of energy NGO Urgenda came just one day after the dire 12-year warning of the special report of the U.N. Intergovernmental Panel on Climate Change.  Meanwhile the Trump Administration filed an emergency motion in federal court in Oregon today in its latest bid to stop climate-change litigation in the United States.

The Netherlands is working mightily already to reduce carbon emissions.  The state projects a reduction in the neighborhood of 20% by 2020 over 1990 levels.  But that number still falls short of 25%, which the court calculated as the nation's minimum treaty commitment.  That difference, The Guardian reported, could be enough to force the shutdown of a recently opened coal-fired power plant.  The court's decision chiefly references the 1992 U.N. Framework Convention on Climate Change and traces the development of states' legal obligations through the history of climate conferences from Kyoto in 1997 to Bonn in 2017.

As the state observed in the case, "Dutch emissions are minor in absolute terms and ... the Netherlands cannot solve the global problem of climate change on its own" (¶ 30).  So the global significance of the decision is mostly symbolic, and, activists hope, an example for climate-change activism in the courts around the world.

American iterations of climate-change litigation are many, but the one case that has captured the public imagination more than any other is Juliana v. United States in the District of Oregon.  The case has played well in media because the plaintiff effort is spearheaded by a not-so-camera-shy youth group, the Earth Guardians, led by indigenous activist, hip-hop artist, and let's be honest, teen heartthrob Xiuhtezcatl Martinez.  (Below: new promo video for Martinez's debut album, Break Free.)


Juliana might yet be described best as "ill fated."  Unlike myriad climate-change-aiming lawsuits in areas such as environmental and business regulation, or upon collateral constitutional theories, such as the Commerce Clause or First Amendment, Juliana is a direct assault on the federal government under constitutional due process—literally, the right to life.

At first blush, this approach seems to face insurmountable hurdles before the merits could ever be reached: namely, standing, justiciability, official immunity, not to mention the hundred other reasons civil rights lawsuits are awfully hard to win.  Then at the threshold of the merits lie the conventional tort problems of affirmative duty, causation, and injury.  In the "constitutional tort" vein, the plaintiffs seek to breathe new breadth into the "public trust doctrine," which posits that government holds natural resources in trust for the public good.  The doctrine has seen modest success in, for example, beach access cases, but jurisprudential conservatives do not enthusiastically embrace the raw, public-policy-driven invitation to judicial intervention.

Despite conventional wisdom, the Juliana suit survived both a motion to dismiss in the trial court and an aggressive effort by the Trump Administration to shut the action down in the Court of Appeals.  (To be fair, the Obama Administration also was not ra-ra plaintiffs on this one.)  In November 2016, District Judge Ann Aiken recognized, "This is no ordinary lawsuit."  Upon detailed analysis, she rejected the government's arguments on both standing and justiciability, finding the question presented "squarely within the purview of the judiciary."

Judge Aiken speaking on recidivism reduction
at ReInvent Law in 2013 (from video CC BY 3.0)
Then, analogizing to the Supreme Court's reasoning on due process in the 2015 gay marriage case, Obergefell v. Hodges, Judge Aiken "ha[d] no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society."  The Ninth Circuit in March rejected the government's bold demand that the case be dismissed to protect the separation of powers, finding the government's claim premature and well shy of the high bar for writ of mandamus.  In July, the U.S. Supreme Court denied the government's appeal for a stay.

Thus back on the District of Oregon docket, Juliana was scheduled to open at trial on October 29.  A headline in The Japan Times, over a pro-plaintiff commentary by Princeton bioethics professor Peter Singer, titled Juliana "the trial of the century."  One week ago, on October 5, the Administration filed another motion for stay in the trial court.  Undoubtedly buoyed by the appointment of Justice Brett Kavanaugh, the Government today renewed its motion to stay and asserted its intention to petition the U.S. Supreme Court for mandamus relief.

In the Dutch case, the government tried to fend off the lawsuit on grounds equivalent to standing and justiciability, but to no avail.  The Dutch Civil Code authorizes class actions (a rarity in Europe) specifically by interest groups on behalf of citizens.  Moreover, the court reasoned that individual human rights claims must be justiciable in Dutch courts if individuals could bring the same claims in the European Court of Human Rights.  The government argued "trias politica," that is, separation of powers, to which the court responded (cheekily?): "This defence does not hold water. The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including [the European human rights convention].  After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them" (¶ 69).

Under the European human rights convention, Urgenda relied on articles 2 and 8, respectively the rights to life and privacy, the latter including the inviolability of family life—the same two notions cited by Judge Aiken in her Obergefell-inspired due process analysis under the Fifth and Fourteenth Amendments.

You can await the next development in Juliana via PACER under case no. 6:15-cv-01517.

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