Green Horizon was following the case

Press release from Our Children’s Trust:

On August 14, for the first time in United States history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people.

In a sweeping win for our 16 young clients, the Honorable Judge Kathy Seeley declared Montana’s fossil fuel-promoting laws are unconstitutional and stopped their implementation.

As fires rage in the West, fueled by fossil fuel pollution, today’s ruling in Montana is a game-changer. It marks a turning point in this young generation’s efforts to save the planet from the devastating effects of human-caused climate chaos.

This is a huge win for youth. This is a win for democracy. This is a win for science. This is a win for our climate. This is a win for constitutional rights. This is a win for the rule of law. This is a win for Montana.

This is a win for the youth climate movement, the human rights movement, the social justice movement, the children’s rights movement, the environmental movement. Our Children’s Trust sits at the heart of all of these movements.

And this is a huge win for our community of supporters and partners. Thank you. More rulings like this will certainly come.

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On Judicial Courage

By Philip Gregory

(Philip Gregory is Of Counsel to Our Children’s Trust, the world’s only non-profit public interest law firm dedicated exclusively to securing the legal rights of youth to a healthy atmosphere and safe climate, based on the best available science. Mr. Gregory is co-lead counsel in Juliana v. United States — Our Children’s Trust (ourchildrenstrust.org), and co-trial counsel in Held v. State of Montana (ourchildrenstrust.org/montana). This article appeared in the Spring 2023 issue of Green Horizon Magazine.)

The only way we as a society will effectively address systemic issues like the climate crisis will be as a result of the exercise of judicial courage.

What is judicial courage? Judicial courage is not using law versus political power as a tool to effectuate one’s personal preferences of what needs to change. Rather, in the face of political pressure and popular opposition, judicial courage is the exercise of independent judgment to decide cases based on the admissible evidence introduced in court using principles of constitutional rights in order to structure an effective remedy.

Judicial courage should be framed first by understanding judicial duty. A judge’s duty is governed by her oath. For a federal judge, that oath reads: I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God.

How does this oath translate into judicial will? Allow me to link judicial courage to actual cases, starting with the civil rights movement. In my view, the civil rights movement was shaped by exercise of judicial authority, such as the federal lawsuits that eventually enforced Brown v. Board of Education. In terms of constitutional law, while the Supreme Court has the power to say what the Constitution means (for example, what public school districts must do to provide equal education to all students), the real meaning of that law depends on how other courts and parts of government interpret and enforce it. State and local actors, inside and outside government, exercise discretion or influence in ways that can frustrate, advance, or otherwise affect court orders. When a judge’s order faces massive resistance, the judge becomes a central actor as it is the judge who determines the effects of her order — how it will shape culture, society, political institutions, and people’s lives.

The initial response to the Brown decision by several states, like South Carolina, was to flout orders to desegregate. In response to the State’s “equalization” program, a federal district court judge ordered South Carolina to desegregate in 1963 based on the evidence at trial. The State had done virtually nothing to segregate voluntarily. In numerous acts of judicial defiance, the State did not begin to accept the 1963 order until 1970 and, even then, continued to circumvent its purpose. If you wish to read about the risk Southern judges took on to enforce Brown, read Unlikely Heroes: The Dramatic Story of the Southern Judges of the Fifth Circuit who Translated the Supreme Court’s Brown Decision into a Revolution for Equality by Professor Jack Bass.

Another area to examine judicial courage about resolution of fundamental constitutional issues involved rights for sexuality. As the Supreme Court held in Obergefell v. Hodges, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” The decision in Obergefell continued: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Constitutional climate litigation is the current movement seeking to use judicial authority to address a systemic problem through the vitality of equitable remedies. Equity must be exercised where judicial intervention is essential in order effectually to protect constitutional rights against injuries caused by governments that are otherwise irremediable. In essence, a court in equity acts in response to inadequacies in the law; as the law changes, equity adapts. Equity vests a court with discretionary powers whose exercise is guided by the evidence and the judge’s conscience. Yet courts right now are working to limit their own power by keeping equity away from the most politically sensitive and delicate matters, asserting the survival of our judiciary depends on the acceptance of its limited role. This limited role concern is turning the judiciary into a second-class branch, more of a twig, rather than an equal to the legislative and executive power.

These issues were recently presented in a constitutional case of great national and public importance involving children’s rights to life and liberty, Juliana v. United States. In 2015, 21 youth Plaintiffs brought this action against the United States government. The Complaint alleged that the federal government’s systemic affirmative ongoing conduct, persisting over decades, in creating, controlling, and perpetuating a national fossil fuel-based energy system, despite long-standing knowledge of the resulting destruction to our nation and profound harm to the youth, violates the youth’s constitutional due process rights. In ruling the case should go to trial, the trial court recognized that, “[a]t its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.” In allowing the children’s claim of infringement of a right to a stable climate system capable of sustaining human life to proceed to trial, along with the youth’s other claims, the court recognized that such a right, if supported by evidence, would be, like the right in Obergefell, a right “underlying and supporting other liberties” and “quite literally the foundation ‘of society, without which there would be neither civilization nor progress.’” The trial court found that, among other remedies, a declaratory judgment would resolve the controversy of whether the government’s decades-long, ongoing, and expanding conduct in causing “carbon emissions from fossil fuel production, extraction, and transportation,” and therefore these children’s injuries, is a constitutional violation.

When Juliana was decided by the federal appellate court in 2020, the three-judge panel initially agreed the children presented “copious expert evidence” to establish the federal government was a substantial cause of the youth’s particularized and actual injuries. Despite this evidence, a two-judge majority “reluctantly concluded” the specific relief the children sought is not “within the power of” the federal judiciary. Consequently, the majority directed the children — who cannot vote — to plead their Fifth Amendment rights “to the political branches or to the electorate at large . . . through the ballot box.”

The majority made significant errors of law that will debilitate Article III courts in deciding constitutional cases and controversies based on the evidence at trial, thereby denigrating fundamental rights of life and liberty to constitutional suggestions — subject to the tyranny of the majority. The majority rejected the ability of a judge to partially redress the children’s injuries, first requiring the youth only to seek a remedy that would “stop catastrophic climate change” or completely “ameliorate their injuries.” Then, using their strawman remedy of fully stopping climate change, the majority then improperly ignored extensive evidence raised by scientific experts in the trial court that the government could substantially reduce emissions to minimize the risk of worsening these children’s injuries.

Expressing outrage at the majority opinion, dissenting judge Staton characterized the evidence: “Not only is government action already posing permanent harm to children, ‘the problem is approaching the ‘point of no return.’” Even with this evidence, “the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.” When the case returned to the district court, the youth requested an opportunity to amend their Complaint. While that request is currently pending, the central question presented by Juliana is whether the courts will allow the political branches to arrogate to themselves the “judicial Power” granted exclusively to the judiciary by Article III pf the Constitution.

The next trial court to examine the evidence behind the climate crisis will be in June 2023. Youth from Montana filed a climate lawsuit under the Montana Constitution alleging the State is violating their Montana constitutional rights to “a clean and healthful environment” by supporting a fossil-fuel-driven energy system. Their case, Held v. State of Montana, will be the first constitutional climate trial in the U.S. The case has its basis in several bills passed in Montana in 2011 which promote the production and use of fossil fuels. The young Montanans seek a court declaration that the State’s policies to prop up fossil fuels are infringing upon their constitutional rights, including the right to a clean and healthy environment. In other words, the court will be deciding the constitutionality of an energy policy that promotes fossil fuels, as well as a state law that allows agencies to ignore the impacts of climate change in their decision-making.

The Held trial will mark the first time that government defendants at the state or federal level will have to try to explain how their continued support for a fossil fuel-based energy system squares with climate science that clearly indicates fossil fuels must be rapidly phased out to limit the most catastrophic climate impacts. It will also be the first time constitutional arguments will be made in a climate change trial in the U.S.

Alexander Hamilton explained “the job of the judge is to enforce the supreme and enduring law of the Constitution over the current will of the majority,” which Hamilton acknowledged would “require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution.” Constitutional limitations on a majoritarian government “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing” (The Federalist №78, Alexander Hamilton). Or as Justice Scalia wrote, the judiciary “rest[s] on the bedrock principle that ‘the constitutional structure of our Government’ is designed first and foremost not to look after the interests of the respective branches, but to ‘protec[t] individual liberty.’”

A functioning government requires independent judicial supremacy to exercise its full authority courageously. In asking what the judicial power is and what it is for, the question turns to whether judges will be equitable agents of change on behalf of marginalized citizens, children, and future generations, as their oath requires. If one recognizes the long-term impacts projected for the climate crisis, one also should recognize our system of governance was not designed to give those generations who will be most impacted by our climate actions today any kind of voice in the system, except through the courts. If our youth are going to have effective rights to life, liberty, and property, as well as equal protection, we need to answer the question: how does a court resolve questions of political power, of sovereignty, of government? Is it, like in Brown and Obergefell, by intertwining concepts of equity, remedies, and the judicial power when an individual’s rights are actually being invaded or imminently threatened?

Judicial courage is not a mirage, a chimera. Judicial courage is exercised when a judge provides independent judgment based on the evidence. As long as the evidence shows there is constitutional right being infringed, for example by a government actively engaging in conduct that will harm citizens and “posterity,” a court must exercise both its power and its will to remedy that defect, certainly when a constitutional right is at stake. Wherever the evidence shows an injury of a constitutional right is caused by the government, there must be a remedy. The government must not be allowed to knowingly injure its citizens to pursue economic ends. Rather than a circumscribed approach, courageous judges have to use their duty of authoritative adjudication to allow effective legal action to carry forward and develop, including authorizing suits by youth to protect their rights under the Constitution.