A Climate-Lawsuit Dissent That Changed My Mind

The American Revolution had scarcely been over a month when, in a farewell letter to the Continental Army, General George Washington admitted something startling: The War of Independence wasn’t necessarily a good thing. At least, it wasn’t yet.

“It is yet to be decided,” he wrote, “whether the Revolution must ultimately be considered as a blessing or a curse.” His audience had just spent eight years on this fight, but he urged them to look past the current decade and even the current century. The new country would shape the future of far more people than just the troops themselves, he cautioned, and the success or failure of the United States would determine the life course of every American who would ever be born. “For with our fate,” Washington wrote, “will the destiny of unborn Millions be involved.”

Last week, the Ninth Circuit Court of Appeals rejected an extraordinary lawsuit brought by several of those millions against their own government. Twenty-one American children alleged that the federal government’s failure to fight climate change was not only poor public policy or an abdication of leadership, but also a violation of the Constitution. The Fifth Amendment says that Americans cannot be “deprived of life, liberty, or property, without due process of law.” The children’s complaint centered on the word life: By losing a “climate system capable of sustaining human life,” they argued, they had been stripped of their constitutional rights.

A panel of three federal judges disagreed. “Even assuming such a broad constitutional right exists,” the judicial branch cannot do anything about it, ruled Judge Andrew Hurwitz, writing for a two-judge majority. The courts, he “reluctantly” wrote, simply do not have the broad power to mandate climate policy under the Constitution.

He advised the kids to go to Congress or the White House instead. “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,” he wrote. “That the other branches may have abdicated their responsibility to remediate the problem does not confer on … courts, no matter how well-intentioned, the ability to step into their shoes.” (Or their hip waders, presumably, if the flooding is bad.)

[Read: T]rump isn’t a climate denier. He’s worse.

The case was always a long shot, and the response of even the friendliest legal experts has been dismay but not surprise. I’ll admit that, as a climate reporter, I had tuned the case out. The kids were asking a federal court—and, inevitably, the Supreme Court—to take one of its most extraordinary interventions into American life since Brown v. Board of Education, which ended lawful racial segregation in public schools.

Yet addressing the climate crisis through the judiciary would be much harder than abolishing segregation—and everyone in the case seemed to know it. As the kids’ legal team argued, fixing climate change requires the full-scale transformation of the country’s energy system. It would require investing money in some practices and banning others. It would, at the very least, require the government to stop leasing public lands for oil and gas extraction. This kind of detail-oriented policy making always makes judges nervous. Federal judges are a peaceable cohort who, faced even with a grave crisis, prefer to stick to conflict resolution.

The kids, in response to this issue, asked the courts merely to order that Congress and the president write their own plan to fight climate change. Even this proved too ambitious. Hurwitz ruled that even if the courts issued such an order, there would be no way to measure the sufficiency of the plan without again engaging in judicial policy making.

And honestly, that may be a blessing for climate-concerned progressives. Since the kids first sued, in 2015, the judiciary has been flooded with conservatives: One in every four circuit judges is now a Donald Trump appointee. Justice Anthony Kennedy, the Supreme Court’s environmental swing vote, has retired. It was never clear to me why the kids’ presumably left-leaning lawyers wanted this newly conservative judiciary and this Supreme Court to formulate new constitutional climate law.

And yet. As I read the sole dissenting opinion in the case, written by Judge Josephine Staton, I found myself moved. I urge you to read it, even if you are not familiar with legal jargon or if you are broadly skeptical of the case’s aims. I’ve reproduced it below.

[Read: The concession to climate change I will not make]

Staton’s opinion deals directly with the question that Washington raised almost 240 years ago: What role should all those “unborn Millions”—those many future Americans—play in the constitutional order? (This is not a question about the start of biological life: Whether you think life begins in the first trimester or the fourth, a 50-year-old in 2080 will still be a legal person, even if he does not exist today.) And more to the point, what responsibility does the country have to preserve itself for the future? Can the courts help the United States be a “blessing” forever?

It is also written urgently and plainly, if you ignore the occasional legal citation. It frames a growing rift on the left, about whether it’s best to address climate change through slow progress achieved institutionally or through