When enacting the New Jersey Law Against Discrimination (NJLAD), the New Jersey Legislature declared, “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While there is no denying the public policy of eradicating discrimination in the workplace as embodied in the NJLAD is a laudable one, it begs the question as to what good such remedial laws provide us if the institutions of our free society, not to mention our very lives, are threatened by the unrestrained use of climate warming fossil fuels. The science on this point is indisputable, and our federal government has admitted as much in filings made in the Oregon federal court case of Juliana v. United States, 217 F. Supp. 3d. 1224 (D. Ct. Ore 2016). It is not an overreach to characterize Juliana as possibly the most monumental lawsuit of our time given it seeks to hold the U.S. Government legally accountable for its alleged complicity in permitting the fossil fuel industry to jeopardize our right to a climate system capable of sustaining human life. It is for this existential reason that this employment law blog is devoting its space this week to an environment-based civil rights case, and the question of whether the Constitution guarantees a life-sustaining climate.
In Juliana, the Plaintiffs, a group of young people between the ages of eight and nineteen, an association of young environmental activists known as Earth Guardians, and Dr. James Hansen, acting as guardian for future generations, filed a civil rights case before the United States District Court in Oregon. They allege the federal government has known for more than 50 years that carbon dioxide pollution was causing catastrophic climate change, and that a nation-wide transition away from fossil fuels was needed to protect their substantive due process rights to life, liberty, and property. By failing to act, the Plaintiffs claim the U.S. Government violated its obligation to hold certain natural resources in trust for the people of our country and for future generations.
The lawsuit argues that despite knowing the severe dangers posed by carbon pollution, the U.S. Government deliberately and recklessly allowed fossil fuel extraction, production, consumption, transportation and exportation, to escalate atmospheric C02 concentrations to levels unprecedented in human history. It is alleged our government’s policies and practices have destabilized the climate system in a way that presents a significant endangerment to plaintiffs, with the damage persisting for millennia. Although many different nations and entities contribute to greenhouse gas emissions, plaintiffs assert the U.S. Government bears “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change.
Plaintiffs further argue that by its unlawful acts and omissions, our government breached its “public trust” over the essential natural resources of this country. Plaintiffs assert that the sovereign’s public trust obligations prevent it from depriving a future legislature of the core natural resources necessary to provide for the well-being and survival of its citizens.
The Juliana lawsuit is not about proving that climate change is happening or that human activity is driving it. The U.S. Government admitted as much when it stipulated that, “[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, a stable climate system.” 217 F. Supp. 3d. at 1234, Fn. 3. Therefore, the issues before the Court were: (1) whether defendants are responsible for some of the harm caused by climate change, (2) whether plaintiffs may challenge defendants’ climate change policy in court, and (3) whether the court can direct defendants to change their policy without running afoul of the separation of powers doctrine.
On November 10, 2016, Federal District Court Judge Ann Aiken denied the Defendants’ efforts to dismiss the case and upheld the idea that it is a fundamental right to have access to a clean environment and a life sustaining climate. As articulated by Judge Aiken, “Exercising my ‘reasoned judgment,” I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the ‘foundation of the family’ a stable climate system is quite literally the foundation‘ of society, without which there would be neither civilization nor progress.” 217 F. Supp. 3d. at 1250; Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)); cf Minors Oposa v. Sec’y of the Dep’t o/Envt’l &Natural Res., G.R. No. 101083, 33 I.L.M. 173, 187-88 (S.C., Jul. 30, 1993) (Phil.) (without “a balanced and healthful ecology,” future generations “stand to inherit nothing but parched earth incapable of sustaining life.”). Because Plaintiffs allege that the governmental action is affirmatively damaging the climate system in a way that will cause death, shortened life spans, widespread property damage, threatened food sources, and a dramatically altered ecosystem, the Court held that they had stated a legitimate due process violation claim. 217 F. Supp. 3d. at 1250. Judge Aiken opined, “[t]he Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.” Id.
Juliana remains undecided. On November 21, 2018, Judge Aiken issued an order certifying Juliana v. United States for interlocutory appeal to the Ninth Circuit Court of Appeals. Should the Defendants eventually get the trial they fervently seek, they will ask the Court to “declare that Defendants have violated and are violating Plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and that, in so doing, Defendants dangerously interfere with a stable climate system required by our nation and Plaintiffs alike”, and then enjoin Defendants from further violations of the Constitution underlying each claim for relief.
If you are interested in learning more about the Juliana case, you are urged to go to the website set up by Our Children’s Trust which can be found at https://www.ourchildrenstrust.org/juliana-v-us.