A three-judge panel from the Ninth Circuit recently dismissed a case in which 21 young people asked the courts to demand federal government action on global warming. The panel did not deny the importance and urgency of taking measures to curb global warming, but rather concluded, with reluctance, that the claims were not redressable by the courts.
“It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses,” wrote Josephine Staton, the dissenting judge. “Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.” The courts, she implied, would not throw up their hands in the asteroid situation—why, then, should the climate crisis be different? Given the urgency of the climate crisis, Staton’s analogy suggested, the majority’s argument that it is not our place to do something loses force.
The two judges in the majority were sympathetic to the young plaintiffs. They found that climate change was a crisis demanding immediate action and that the plaintiffs had demonstrated concrete injuries from climate change, injuries that arguably violated constitutional rights. They found that numerous federal policies, including actively encouraging and incentivizing industry use of fossil fuels, were substantial factors in the young people’s demonstrated injuries. They found that the young litigants had successfully demonstrated being harmed—and being at risk of risk of further harm—by human-caused climate change made worse by such governmental policies.
But the majority halted the case on the grounds that the policy decisions required to redress the harms of the young people were too complex and involved for the courts, and that it was properly the domain of the other branches to address such issues. On such grounds, they shifted the decision to the executive and legislative branches: the very branches responsible for the harmful policies in question.
Certainly the courts cannot solve the climate crisis by fiat, but neither was this the request. And complexity, as the dissenting judge observed, does not disqualify the courts from hearing cases otherwise suitable for judicial consideration. Brown v. Board, for example, ordered the racial desegregation of every U.S. public school, not balking at the fact that the particularities of doing so would be massively complicated. Though the court system cannot solve climate change by itself, a judgement finding that the government is engaging in unconstitutional behavior and ordering it into compliance could still be significant. Even limited moves such as ordering that the government cease to encourage the use of fossil fuels would constitute an important forward step.
The more central issues in the case, however, concern the magnitude of the harms and the urgency with which the harms would have to be redressed. Neither issue involves factual controversies: all three judges fully accepted the scientific consensus that great and irreparable harm will be wrought upon animals and their habitats—including humans and their cities and settlements—in the next 30 years. Nor did they deny that we are quickly approaching a point of no return, after which environmental degradation will be so severe that the worst effects of the climate crisis will be somewhere between very difficult and impossible to overcome.
An essential question of the case is when the court should, in the face of inaction by the other two branches, take matters into its own hands. Absent exceeding urgency, it may seem imperative for the courts to step back and urge the young litigants to call their members of Congress and perhaps even support alternative candidates in future election cycles, even if this means that the correction of wrongs may take a regrettably long period of time (91 years, for example, the timespan between the Emancipation Proclamation and the decision in Brown v. Board, as the dissenting judge noted). The two-judge majority echoed this reasoning, writing that “the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box,” thereby declining to provide a judicial redress regarding the climate crisis for the young litigants, who will endure the effects of climate change more so than the more aged jurists on the bench.
Given the hostility the current administration and Congress have displayed toward matters of climate change, the suggestion that voters implore their legislators to take reparative steps regarding climate change is not reassuring. Many of the young plaintiffs will not even be able to vote in the next several national elections, so some of them would have to wait at least another two administrations to be able to address their demands for action to the legislative and executive branches. Besides, an essential aspect of the case is that the political branches have failed to act, thereby necessitating judicial intervention.
If the climate crisis were less urgent, the young litigants might have the time to wait for the political process to correct its own wrongs. But by 2028 human civilization will have passed the point of no return for limiting global temperature rise to 1.5 degrees Celsius. And since climate change works on timescales that exceed two-year election cycles, action is needed now (or better yet, yesterday), not later.
Herein lies an important distinction between this case and Brown v. Board. The 91 years between the Emancipation Proclamation and Brown were exemplative not of laudable judicial restraint but of the momentum of oppression. The injustice, however, could still be rectified 91 years later. School integration came late, but not never. We are not in a situation today to wait 91 years. Here more than ever, justice delayed may truly be justice irrevocably denied.
The fact that the litigants are not adults, and thus not voters, motivates another line of argument not included in the court’s opinion or the dissent: an important function of the courts is to address the concerns of persons whose interests are not prioritized by the politicians of the day. While elected officials are not motivated to concern themselves with the worries of non-enfranchised persons, judges are uniquely positioned to ensure the rights of non-voters are observed, including the right to a livable habitat that is implicit in the fundamental right to life invoked in both the Declaration of Independence and the Fifth Amendment.
The argument that the courts cannot intervene in a normally political question even though the entire climate is at stake does not hold water to the rising sea levels, polluted air, decreased biodiversity, deadlier and more frequent natural disasters and other consequences of human-caused climate change. However slow-moving the climate crisis may seem on a day-to-day basis, its urgency means it would be a dereliction of judicial duty for the courts to stay silent.
Whether or not the young litigants will age in a livable habitat is not merely a political question but also a question of fundamental rights. Politics regards groups of people deciding together what to do and how to live. Courts abrogate their responsibility when they pretend their work does not implicate political affairs. The urgency of the climate crisis, coupled with the inaction of the political branches, justifies judicial intervention. As Judge Staton concluded her dissent: “determining when a court must step in to protect fundamental rights is not an exact science. In this case, my colleagues say the time is ‘never’; I say it is now.” We concur with her judgement.