A youth-led climate lawsuit that once promised to deliver the “trial of the century” fizzled to a near certain end earlier this month — but lawyers behind the case say they’re not giving up yet.
Juliana v. United States accused the federal government of violating young people’s constitutional rights by allowing decades’ worth of greenhouse gas emissions to spew into the atmosphere. The case spanned three presidential administrations and inspired copycat lawsuits across the globe.
But three judges of the 9th U.S. Circuit Court of Appeals — siding with the Biden administration — issued an order in early May that dismissed the case, declaring that courts cannot “step into the shoes of the political branches to provide the relief the Juliana plaintiffs sought.”
Our Children’s Trust, the Oregon-based public interest law firm that has represented young climate activists since Juliana‘s inception in 2015, is still hoping for a reprieve.
“We’re certainly going to argue that it was wrongly decided,” said Mat dos Santos, co-executive director of the firm. “You will see Our Children’s Trust engaging in strategic litigation in state and federal courts around the world until we feel comfortable that we have a universally recognized right to a safe and healthy climate.”
The firm is likely to ask the 9th Circuit for a hearing before the court’s full roster of active judges. Such reviews are rarely granted, but dos Santos said the decision wrongly declared that an earlier panel of 9th Circuit judges had tossed Juliana “with prejudice,” or without the option to revive the claims.
If the 9th Circuit declines to revisit the case or rules against the youth on rehearing, the last stop for Our Children’s Trust would be the Supreme Court.
The firm has until mid-June to make its next move. Legal analysts, however, say the case is all but over, as the 9th Circuit is unlikely to grant rehearing, and a Supreme Court plea would be a big risk. Still, they say Juliana leaves a considerable legacy.
Here are five takeaways from the nation’s longest-running youth climate lawsuit.
1. Juliana inspired other lawsuits
The 21 Juliana challengers have helped mobilize the next generation of climate activists across the globe, reaping lots of publicity and even earning starring roles in a Netflix documentary.
In that sense, “the case was a big success,” said Dan Farber, faculty director at the Center for Law, Energy & the Environment at the University of California, Berkeley. “It helped keep the public’s attention on the climate issue, and it provided a rallying cry for young people who are desperate for more sweeping climate action.”
Juliana has also inspired other successful cases in countries, including Colombia, Germany and Belgium, said Pat Parenteau, emeritus professor at the Vermont Law and Graduate School.
“Even though Juliana has failed in the U.S.,” he said, “it has inspired other cases that have been successful, that have recognized environmental rights.”
Juliana has also served as a model for a second U.S. federal lawsuit from Our Children’s Trust, Genesis B. v. EPA. The case recently stumbled in court, but the firm has since resubmitted an amended complaint.
While the Biden administration — like the Obama and Trump administrations before it — fought against Juliana‘s claims, the case will be remembered for helping shape federal environmental policy, such as the push to bring more voices into reviews of the climate impacts of fossil fuel and infrastructure projects, said J. Michael Showalter, a partner at the law firm ArentFox Schiff.
“These 21 were locked out of the policymaking process and didn’t have a chance to tell their story,” Showalter said. “It’s not just because of their efforts, but policymaking has moved to their favor.”
2. Activists may have dodged a bullet
Some environmental lawyers have feared that if Juliana made it to the conservative-dominated Supreme Court, the justices would be tempted to use it to limit climate activists’ access to legal relief.
Conservative justices have traditionally taken a more limited view of environmentalists’ standing, or their power to file lawsuits, and could use Juliana to find that no single person or entity has the power to sue over climate change because the threat is too diffuse to be resolved by the courts.
Our Children’s Trust has avoided the Supreme Court once before: After losing in the 9th Circuit in 2020 and failing to secure rehearing, the firm chose to go back to the U.S. District Court for the District of Oregon to amend the case. The 9th Circuit’s May order rejected the young activists’ revised complaint.
Legal observers have recommended that the Juliana challengers stay out of the high court this time, too.
“Given that there are other cases out there that the industry in particular would like to get before the Supreme Court, raising the salience of climate litigation in a case that’s likely to strike the justices as being particularly extravagant or aggressive was a very high-risk strategy,” said Jonathan Adler, founding director of the environmental law center at Case Western Reserve University.
“If you convince the justices that climate change litigation is out of control,” he continued, “you make it more likely they take on these other cases out there and put an end to it.”
Our Children’s Trust has refuted the idea that a Supreme Court petition in Juliana could imperil other climate lawsuits. It has not yet decided whether it will ask the Supreme Court to reverse its latest loss in the 9th Circuit, but dos Santos said the justices, who take up only a limited number of cases, would be unlikely to intervene.
Dos Santos said the firm — if it chose to petition the Supreme Court — would limit its appeal to whether the 9th Circuit improperly found that Juliana had been dismissed with prejudice.
“We’re going to think long and hard about it because at that point it really would be the end of Juliana,” they said. “We owe it to these plaintiffs who have been in this fight for almost 10 years to take every step that they want us to take to vindicate their legal rights.”
3. Less is more
Environmental attorneys say Juliana might have been more successful had it not tried to do so much.
The young activists had initially asked for a scientifically based, court-supervised plan for the U.S. government to slash greenhouse gas emissions. After a string of courtroom defeats, the case was pared back to ask only for a declaration that federal officials are violating young people’s constitutional rights to a stable climate.
A narrower focus from the outset might not have “scared the courts to death,” said Parenteau.
“Courts were never going to order the government of the United States, including Congress and the executive branch, to come up with a net-zero plan in line with what the science says is necessary,” he said.
Our Children’s Trust had better luck with a youth climate case in Montana, but only after limiting its request to a declaration that state lawmakers had violated young people’s constitutional rights to a healthy environment by ignoring climate change. The Montana Constitution also includes a right to a stable climate — a protection not explicitly offered in the U.S. Constitution.
“More concerted efforts in state courts could have better results,” Farber said. “Given the makeup of the federal courts, litigation there is going to have to be a lot more incremental and focused to have any traction.”
Dos Santos countered that the 9th Circuit still dismissed Juliana — even after challengers scaled back their ask.
“We’re sort of in this Goldilocks problem,” dos Santos said. “Part of the issue is that the courts simply do not want to address climate change.”
4. Some judges want to do more on climate
Juliana leaves behind a number of court opinions that environmental lawyers say could be helpful in future attempts to argue that the U.S. Constitution includes the right to a healthy environment.
When the 9th Circuit dismissed the case in 2020, it did so over the objections of one of the panel’s three members, Josephine Staton, a federal District Court judge in California who participated in the case by designation.
The Obama appointee wrote in her dissent that courts have authority to order the federal government to act when confronted by “an existential threat,” and she compared the case to Brown v. Board of Education, which ended segregation in schools.
Some lawyers said it is also notable that Senior Judge Ann Aiken of the Oregon District Court brought Juliana back to life after the 9th Circuit halted the case in 2020.
The Clinton appointee had repeatedly rebuffed efforts to dismiss the case and did so only after the most recent 9th Circuit ruling forced her hand.
Adler said Aiken’s approach clearly stretched beyond her authority and is an example of judicial activism — an accusation that he said is often raised against conservative jurists.
“I don’t think anything we’ve seen holds a candle to what we saw with Judge Aiken,” he said.
5. Institutional reform is hard
Federal courts over the decades have issued sweeping decisions on education, gay marriage and a host of other societal issues — but such rulings are exceedingly rare.
Declaring a constitutional right to a stable climate would be a heavy lift for most federal courts, said Jeff Holmstead, a partner at Bracewell who served as EPA air chief during the George W. Bush administration.
“Even under prior Supreme Courts that were not as conservative, that sort of unenumerated right was not going to fly,” Holmstead said, noting that while the 9th Circuit was sympathetic to the Juliana challengers in 2020, it still dismissed the case.
He said that even international courts that have issued favorable rulings for climate activists have sometimes stopped short of requiring specific solutions.
Adler said Juliana also underscores how courts are unlikely to declare rights that haven’t been expressly granted. He said the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which ended the constitutional right to an abortion, “put an exclamation point” on the idea that courts need to be reluctant to recognize new rights.
He said Juliana presented an even greater challenge because it called for a “particularly aggressive, positive right” — rather than asking the government to refrain from violating protections.
Parenteau, though, said the courts failed the Juliana challengers because judges have a responsibility to determine if there is a constitutional right to a clean environment, as some international courts have found.
“Yes, it’s up to Congress to set climate policy and come up with the plans and the funding,” he said. “But when it comes to, ‘Do we have a constitutional right?’ That is profoundly the job of the judiciary.”
Dos Santos noted that it’s long been the case that big legal wins come only after numerous losses.
“Federal courts have never been a place that is quick to lead with systemic change,” they said. “All you have to do is look at the civil rights movement. It’s not terribly surprising to have these bumps in the fight toward justice.”
