III. Due Process Claims
The Due Process Clause of the Fifth Amendment to the United States Constitution bars the federal government from depriving a person of "life, liberty, or property" without "due process of law." U.S. Const. amend. V.
Plaintiffs allege defendants have violated their due process rights by "directly caus[ing] atmospheric C02 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs[,]" First Am. Compl. ~ 279; "knowingly endanger[ing] Plaintiffs' health and welfare by approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion," id. ~ 280; and, "(a)fter knowingly creating this dangerous situation for Plaintiffs, … continu[ing] to knowingly enhance that danger by allowing fossil fuel production, consumption, and combustion at dangerous levels," id. ~ 284.
Defendants and intervenors challenge plaintiffs' due process claims on two grounds.
First, they assert any challenge to defendants' affirmative actions (i.e. leasing land, issuing permits) cannot proceed because plaintiffs have failed to identify infringement of a fundamental right or discrimination against a suspect class of persons.
Second, they argue plaintiffs cannot challenge defendants' inaction (i.e., failure to prevent third parties from emitting C02 at dangerous levels) because defendants have no affirmative duty to protect plaintiffs from climate change.
5 Defendants and intervenors also challenge the standing of future generations plaintiffs on a number of grounds.
It is not necessary to address these arguments because once a federal court concludes one plaintiff has standing, it need not determine whether the remaining plaintiffs have standing. Nat'l Ass'n of Optometrists & Opticians Lens Crafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009).
6 Plaintiffs' due process claims encompass asserted equal protection violations and violations of unenumerated rights secured by the Ninth Amendment.
For simplicity's sake, this opinion refers to these claims collectively as "due process claims."
TO BE CONTINUED ...
JULIANA v. UNITED STATES OF AMERICA
Re: JULIANA v. UNITED STATES OF AMERICA
A. Infringement of a Fundamental Right
When a plaintiff challenges affirmative government action under the due process clause, the threshold inquiry is the applicable level of judicial scrutiny. Witt v. Dep't of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008).
The default level of scrutiny is rational basis, which requires a reviewing court to uphold the challenged governmental action so long as it "implements a rational means of achieving a legitimate governmental end[.]" Kim v. United States, 121F.3d1269, 1273 (9th Cir. 1997) (quotation marks omitted).
When the government infringes a "fundamental right," however, a reviewing court applies strict scrutiny. Witt, 527 F.3d at 817.
Substantive due process "forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original).
It appears undisputed by plaintiffs, and in any event is clear to this Court, that defendants' affirmative actions would survive rational basis review.
Resolution of this part of the motions to dismiss therefore hinges on whether plaintiffs have alleged infringement of a fundamental right.
Fundamental liberty rights include both rights enumerated elsewhere in the Constitution and rights and liberties which are either (1) "deeply rooted in this Nation's history and tradition" or (2) "fundamental to our scheme of ordered liberty." McDonald v. City of Chicago, Ill., 561 U.S. 742, 767(2010) (internal citations, quotations, and emphasis omitted).
The Supreme Court has cautioned that federal courts must "exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into" judicial policy preferences. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citation and quotation marks omitted).
This does not mean that "new" fundamental rights are out of bounds, though.
When the Supreme Court broke new legal ground by recognizing a constitutional right to same-sex marriage, Justice Kennedy wrote that:
"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 ... did not presume to know the extent of freedom in all 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." Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
Thus, "(t)he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution ... [that] has not been reduced to any formula." Id. (citation and quotation marks omitted).
In determining whether a right is fundamental, courts must exercise "reasoned judgment," keeping in mind that "(h)istory and tradition guide and discipline this inquiry but do not set its outer boundaries." Id.
The genius of the Constitution is that its text allows "future generations [to] protect ... the right of all persons to enjoy liberty as we learn its meaning." Id.
Often, an unenumerated fundamental right draws on more than one Constitutional source.
The idea is that certain rights may be necessary to enable the exercise of other rights, whether enumerated or unenumerated.
In Roe v. Wade, 410 U.S. 113, 152-53 (1973), the Court exhaustively chronicled the jurisprudential history of the fundamental right to privacy - another right not mentioned in the text of the Constitution.
Roe's central holding rests on the Due Process Clause of the Fourteenth Amendment. Id. at 153.
But the Court also found "roots" of the right to privacy in the First Amendment, the Fourth Amendment, the Fifth Amendment, the penumbras of the Bill of Rights, and the Ninth Amendment. Id. at 152.
Similarly, in Obergefell, the Court's recognition of a fundamental right to marry was grounded in an understanding of marriage as a right underlying and supporting other vital liberties. See 135 S. Ct. at 2599 ("(I)t would be contradictory to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is at the foundation of the family in our society." (citation and quotation marks omitted)); id. at 2601 ("(M)arriage is a keystone of our social order.").
Exercising my "reasoned judgment," id at 2598, 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." Id (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)); cf Minors Oposa v. Sec'y of the Dep't of 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.").
Defendants and intervenors contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental.
Defendants and intervenors mischaracterize the right plaintiffs assert.
Plaintiffs do not object to the government's role in producing any pollution or in causing any climate change; rather, they assert the government has caused pollution and climate change on a catastrophic level, and that if the government's actions continue unchecked, they will permanently and irreversibly damage plaintiffs' property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children's) ability to live long, healthy lives.
Echoing Obergefell's reasoning, plaintiffs allege a stable climate system is a necessary condition to exercising other rights to life, liberty, and property.
In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims.
On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species.
On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation.
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation.
To hold otherwise would be to say that the 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.
7 Strict scrutiny also is triggered by an allegation that the government discriminated on the basis of a suspect classification, regardless of whether the government action infringed a fundamental right. Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003).
Because I conclude that plaintiffs have alleged a violation of their fundamental rights, I need not address whether youth or future generations are suspect classifications for equal protection purposes.
TO BE CONTINUED ...
When a plaintiff challenges affirmative government action under the due process clause, the threshold inquiry is the applicable level of judicial scrutiny. Witt v. Dep't of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008).
The default level of scrutiny is rational basis, which requires a reviewing court to uphold the challenged governmental action so long as it "implements a rational means of achieving a legitimate governmental end[.]" Kim v. United States, 121F.3d1269, 1273 (9th Cir. 1997) (quotation marks omitted).
When the government infringes a "fundamental right," however, a reviewing court applies strict scrutiny. Witt, 527 F.3d at 817.
Substantive due process "forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original).
It appears undisputed by plaintiffs, and in any event is clear to this Court, that defendants' affirmative actions would survive rational basis review.
Resolution of this part of the motions to dismiss therefore hinges on whether plaintiffs have alleged infringement of a fundamental right.
Fundamental liberty rights include both rights enumerated elsewhere in the Constitution and rights and liberties which are either (1) "deeply rooted in this Nation's history and tradition" or (2) "fundamental to our scheme of ordered liberty." McDonald v. City of Chicago, Ill., 561 U.S. 742, 767(2010) (internal citations, quotations, and emphasis omitted).
The Supreme Court has cautioned that federal courts must "exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into" judicial policy preferences. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citation and quotation marks omitted).
This does not mean that "new" fundamental rights are out of bounds, though.
When the Supreme Court broke new legal ground by recognizing a constitutional right to same-sex marriage, Justice Kennedy wrote that:
"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 ... did not presume to know the extent of freedom in all 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." Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
Thus, "(t)he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution ... [that] has not been reduced to any formula." Id. (citation and quotation marks omitted).
In determining whether a right is fundamental, courts must exercise "reasoned judgment," keeping in mind that "(h)istory and tradition guide and discipline this inquiry but do not set its outer boundaries." Id.
The genius of the Constitution is that its text allows "future generations [to] protect ... the right of all persons to enjoy liberty as we learn its meaning." Id.
Often, an unenumerated fundamental right draws on more than one Constitutional source.
The idea is that certain rights may be necessary to enable the exercise of other rights, whether enumerated or unenumerated.
In Roe v. Wade, 410 U.S. 113, 152-53 (1973), the Court exhaustively chronicled the jurisprudential history of the fundamental right to privacy - another right not mentioned in the text of the Constitution.
Roe's central holding rests on the Due Process Clause of the Fourteenth Amendment. Id. at 153.
But the Court also found "roots" of the right to privacy in the First Amendment, the Fourth Amendment, the Fifth Amendment, the penumbras of the Bill of Rights, and the Ninth Amendment. Id. at 152.
Similarly, in Obergefell, the Court's recognition of a fundamental right to marry was grounded in an understanding of marriage as a right underlying and supporting other vital liberties. See 135 S. Ct. at 2599 ("(I)t would be contradictory to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is at the foundation of the family in our society." (citation and quotation marks omitted)); id. at 2601 ("(M)arriage is a keystone of our social order.").
Exercising my "reasoned judgment," id at 2598, 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." Id (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)); cf Minors Oposa v. Sec'y of the Dep't of 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.").
Defendants and intervenors contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental.
Defendants and intervenors mischaracterize the right plaintiffs assert.
Plaintiffs do not object to the government's role in producing any pollution or in causing any climate change; rather, they assert the government has caused pollution and climate change on a catastrophic level, and that if the government's actions continue unchecked, they will permanently and irreversibly damage plaintiffs' property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children's) ability to live long, healthy lives.
Echoing Obergefell's reasoning, plaintiffs allege a stable climate system is a necessary condition to exercising other rights to life, liberty, and property.
In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims.
On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species.
On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation.
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation.
To hold otherwise would be to say that the 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.
7 Strict scrutiny also is triggered by an allegation that the government discriminated on the basis of a suspect classification, regardless of whether the government action infringed a fundamental right. Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003).
Because I conclude that plaintiffs have alleged a violation of their fundamental rights, I need not address whether youth or future generations are suspect classifications for equal protection purposes.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
B. "Danger Creation" Challenge to Inaction
With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation to act, even when "such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989).
This rule is subject to two exceptions: "(1) the 'special relationship' exception; and (2) the 'danger creation' exception." L. W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).
The "special relationship" exception provides that when the government takes an individual into custody against his or her will, it assumes some responsibility to ensure that individual's safety. Id.
The "danger creation" exception permits a substantive due process claim when government conduct "places a person in peril in deliberate indifference to their safety[.]" Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997).
Plaintiffs purport to challenge the government's failure to limit third-party C02 emissions pursuant to the danger creation DeShaney exception.
In the Ninth Circuit, a plaintiff challenging government inaction on a danger creation theory must first show the "state actor create(d) or expose(d) an individual to a danger which he or she would not have otherwise faced." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).
The state action must place the plaintiff "in a worse position than that in which he would have been had the state not acted at all." Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir. 2016) (quotation marks omitted and alterations normalized).
Second, the plaintiff must show the "state actor ... recognize(d)" the unreasonable risks to the plaintiff and "actually intend(ed) to expose the plaintiff to such risks without regard to the consequences to the plaintiff." Campbell v. Wash. Dep't of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (brackets and quotation marks omitted).
The defendant must have acted with "(d)eliberate indifference," which "requires a culpable mental state more than gross negligence." Pauluk, 836 F.3d at 1125 (quotation marks omitted).
Plaintiffs allege that "(a)cting with full appreciation of the consequences of their acts, Defendants knowingly caused, and continue to cause, dangerous interference with our atmosphere and climate system." First Am. Compl. ii 85.
They allege this danger stems, "in substantial part, [from] Defendants' historic and continuing permitting, authorizing, and subsidizing of fossil fuel extraction, production, transportation, and utilization." Id. ii 279.
Plaintiffs allege defendants acted "with full appreciation" of the consequences of their acts, id. iiii 278-79, specifically "[harm to] Plaintiffs' dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, maintain their bodily integrity, and lead lives with access to clean air, water, shelter, and food." Id. ii 283.
In the face of these risks, plaintiffs allege defendants "have had longstanding, actual knowledge of the serious risks of harm and have failed to take necessary steps to address and ameliorate the known, serious risk to which they have exposed Plaintiffs." Id. if 285.
In sum: plaintiffs allege defendants played a unique and central role in the creation of our current climate crisis; that they contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change; and that the Due Process Clause therefore imposes a special duty on defendants to use their statutory and regulatory authority to reduce greenhouse gas emissions.
Accepting the allegations of the complaint as true, plaintiffs have adequately alleged a danger creation claim.
Defendants argue the DeShaney exceptions are inapplicable when the actor is the federal government rather than a state government.
It is true that DeShaney was a section 1983 case and that the Ninth Circuit cases interpreting the DeShaney exceptions are also section 1983 cases.
But in DeShaney, the Supreme Court was mapping the contours of the Due Process Clause, not section 1983.
Defendants have cited no case or legal principle to justify limiting DeShaney to the section 1983 context.
Next, defendants contend application of the DeShaney danger creation exception in this context would permit plaintiffs to "raise a substantive due process claim to challenge virtually any government program" - for example, to challenge foreign policy decisions that heighten or exacerbate international tensions, or to health and safety regulations the plaintiff deems insufficiently stringent. Fed. Defs.' Obj. 18.
Defendants fail to recognize that DeShaney imposes rigorous proof requirements.
A plaintiff asserting a danger-creation due process claim must show (1) the government's acts created the danger to the plaintiff; (2) the government knew its acts caused that danger; and (3) the government with deliberate indifference failed to act to prevent the alleged harm.
These stringent standards are sufficient safeguards against the flood of litigation concerns raised by defendants - indeed, they pose a significant challenge for plaintiffs in this very lawsuit.
Questions about difficulty of proof, however, must be left for another day.
At the motion to dismiss stage, I am bound to accept the factual allegations in the complaint as true.
Plaintiffs have alleged that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.
They may therefore proceed with their substantive due process challenge to defendants' failure to adequately regulate CO2 emissions.
8 At oral argument, plaintiffs supplied the Court with a timeline documenting purported evidence of defendants' knowledge of climate change.
The timeline, which dates back to 1955, includes the 1988 testimony of Dr. James Hansen before the Senate Committee on Energy and Natural Resources.
Dr. Hansen, who appears in this lawsuit as a guardian for his granddaughter and for future generations, testified about rising global temperatures and their relationship to human activity.
First Session on the Greenhouse Effect and Global Climate Change Before the Comm. on Energy & Natural Res., lOOth Cong. 39 (1988).
He urged legislators to take action to limit greenhouse gas emissions. Id. at 158.
Dr. Hansen's testimony was preceded by a statement from Senator Dale Bumpers of Arkansas, who bemoaned, "We're not going to have a lot of political support for this."
"Nobody wants to take on the automobile industry."
"Nobody wants to take on any of the industries that produce the things we throw up into the atmosphere." Id. at 38.
9 There are other barriers to asserting defendants' hypothetical danger-creation claims.
For example, as discussed in Part I of this opinion, the political question doctrine sharply limits judicial review of decisions inherently entangled with the conduct of foreign relations.
TO BE CONTINUED ...
With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation to act, even when "such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago Cnty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989).
This rule is subject to two exceptions: "(1) the 'special relationship' exception; and (2) the 'danger creation' exception." L. W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).
The "special relationship" exception provides that when the government takes an individual into custody against his or her will, it assumes some responsibility to ensure that individual's safety. Id.
The "danger creation" exception permits a substantive due process claim when government conduct "places a person in peril in deliberate indifference to their safety[.]" Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997).
Plaintiffs purport to challenge the government's failure to limit third-party C02 emissions pursuant to the danger creation DeShaney exception.
In the Ninth Circuit, a plaintiff challenging government inaction on a danger creation theory must first show the "state actor create(d) or expose(d) an individual to a danger which he or she would not have otherwise faced." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).
The state action must place the plaintiff "in a worse position than that in which he would have been had the state not acted at all." Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir. 2016) (quotation marks omitted and alterations normalized).
Second, the plaintiff must show the "state actor ... recognize(d)" the unreasonable risks to the plaintiff and "actually intend(ed) to expose the plaintiff to such risks without regard to the consequences to the plaintiff." Campbell v. Wash. Dep't of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (brackets and quotation marks omitted).
The defendant must have acted with "(d)eliberate indifference," which "requires a culpable mental state more than gross negligence." Pauluk, 836 F.3d at 1125 (quotation marks omitted).
Plaintiffs allege that "(a)cting with full appreciation of the consequences of their acts, Defendants knowingly caused, and continue to cause, dangerous interference with our atmosphere and climate system." First Am. Compl. ii 85.
They allege this danger stems, "in substantial part, [from] Defendants' historic and continuing permitting, authorizing, and subsidizing of fossil fuel extraction, production, transportation, and utilization." Id. ii 279.
Plaintiffs allege defendants acted "with full appreciation" of the consequences of their acts, id. iiii 278-79, specifically "[harm to] Plaintiffs' dignity, including their capacity to provide for their basic human needs, safely raise families, practice their religious and spiritual beliefs, maintain their bodily integrity, and lead lives with access to clean air, water, shelter, and food." Id. ii 283.
In the face of these risks, plaintiffs allege defendants "have had longstanding, actual knowledge of the serious risks of harm and have failed to take necessary steps to address and ameliorate the known, serious risk to which they have exposed Plaintiffs." Id. if 285.
In sum: plaintiffs allege defendants played a unique and central role in the creation of our current climate crisis; that they contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change; and that the Due Process Clause therefore imposes a special duty on defendants to use their statutory and regulatory authority to reduce greenhouse gas emissions.
Accepting the allegations of the complaint as true, plaintiffs have adequately alleged a danger creation claim.
Defendants argue the DeShaney exceptions are inapplicable when the actor is the federal government rather than a state government.
It is true that DeShaney was a section 1983 case and that the Ninth Circuit cases interpreting the DeShaney exceptions are also section 1983 cases.
But in DeShaney, the Supreme Court was mapping the contours of the Due Process Clause, not section 1983.
Defendants have cited no case or legal principle to justify limiting DeShaney to the section 1983 context.
Next, defendants contend application of the DeShaney danger creation exception in this context would permit plaintiffs to "raise a substantive due process claim to challenge virtually any government program" - for example, to challenge foreign policy decisions that heighten or exacerbate international tensions, or to health and safety regulations the plaintiff deems insufficiently stringent. Fed. Defs.' Obj. 18.
Defendants fail to recognize that DeShaney imposes rigorous proof requirements.
A plaintiff asserting a danger-creation due process claim must show (1) the government's acts created the danger to the plaintiff; (2) the government knew its acts caused that danger; and (3) the government with deliberate indifference failed to act to prevent the alleged harm.
These stringent standards are sufficient safeguards against the flood of litigation concerns raised by defendants - indeed, they pose a significant challenge for plaintiffs in this very lawsuit.
Questions about difficulty of proof, however, must be left for another day.
At the motion to dismiss stage, I am bound to accept the factual allegations in the complaint as true.
Plaintiffs have alleged that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.
They may therefore proceed with their substantive due process challenge to defendants' failure to adequately regulate CO2 emissions.
8 At oral argument, plaintiffs supplied the Court with a timeline documenting purported evidence of defendants' knowledge of climate change.
The timeline, which dates back to 1955, includes the 1988 testimony of Dr. James Hansen before the Senate Committee on Energy and Natural Resources.
Dr. Hansen, who appears in this lawsuit as a guardian for his granddaughter and for future generations, testified about rising global temperatures and their relationship to human activity.
First Session on the Greenhouse Effect and Global Climate Change Before the Comm. on Energy & Natural Res., lOOth Cong. 39 (1988).
He urged legislators to take action to limit greenhouse gas emissions. Id. at 158.
Dr. Hansen's testimony was preceded by a statement from Senator Dale Bumpers of Arkansas, who bemoaned, "We're not going to have a lot of political support for this."
"Nobody wants to take on the automobile industry."
"Nobody wants to take on any of the industries that produce the things we throw up into the atmosphere." Id. at 38.
9 There are other barriers to asserting defendants' hypothetical danger-creation claims.
For example, as discussed in Part I of this opinion, the political question doctrine sharply limits judicial review of decisions inherently entangled with the conduct of foreign relations.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
IV. Public Trust Claims
In its broadest sense, the term "public trust" refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi, 101 U.S. 814, 820 (1879) ("(T)he power of governing is a trust committed by the people to the government, no part of which can be granted away.")
The public trust doctrine rests on the fundamental principle that
"(e)very succeeding legislature possesses the same jurisdiction and power with respect to [the public interest] as its predecessors." Newton v. Mahoning Cnty. Comm'rs, 100 U.S. 548, 559 (1879).
The doctrine conceives of certain powers and obligations - for example, the police power - as inherent aspects of sovereignty. Id. at 554.
Permitting the government to permanently give one of these powers to another entity runs afoul of the public trust doctrine because it diminishes the power of future legislatures to promote the general welfare.
Plaintiffs' public trust claims arise from the particular application of the public trust doctrine to essential natural resources.
With respect to these core resources, the sovereign's public trust obligations prevent it from "depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens." Br. of Amici Curiae Global Catholic Climate Movement and Leadership Council of Women Religious at 3 (footnote omitted) (doc. 51-1).
Application of the public trust doctrine to natural resources predates the United States of America.
Its roots are in the Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the "foundation for modern civil law systems." Timothy G. Kearley, Justice Fred Blume and the Translation of Justinian's Code, 99 Law Libr. J. 525, if 1 (2007).
The Institutes of Justinian declared "the following things are by natural law common to all - the air, running water, the sea, and consequently the seashore." J. Inst. 2.1.1 (J.B. Moyle trans.).
The doctrine made its way to the United States through the English common law. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 284 (1997) ("American law adopted as its own much of the English law respecting navigable waters, including the principle that submerged lands are held for a public purpose."); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988) ("At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation ... Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders[.]" (quoting Shively v. Bowlby, 152 U.S. 1, 57 (1894)); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 475-76 (1970) (discussing the history of the public trust doctrine in the United States).
The first court in this country to address the applicability of the public trust doctrine to natural resources was the New Jersey Supreme Court, in 1821.
The court explained that public trust assets were part of a taxonomy of property: Every thing susceptible of property is considered as belonging to the nation that possesses the country, as forming the entire mass of its wealth.
But the nation does not possess all those things in the same manner.
By very far the greater part of them are divided among the individuals of the nation, and become private property.
Those things not divided among the individuals still belong to the nation, and are called public property.
Of these, again, some are reserved for the necessities of the state, and are used for the public benefit, and those are called "the domain of the crown or of the republic," others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property.
Of this latter kind, according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish, and the wild beasts. Arnold v. Mundy, 6 N.J.L. 1, 71 (N.J. 1821) (emphasis in original).
The seminal United States Supreme Court case on the public trust is Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892).
The Illinois legislature had conveyed to the Illinois Central Railroad Company title to part of the submerged lands beneath the harbor of Chicago, with the intent to give the company control over the waters above the submerged lands "against any future exercise of power over them by the state." Id. at 452.
The Supreme Court held the legislature's attempt to give up its title to lands submerged beneath navigable waters was either void on its face or always subject to revocation. Id. at 453.
"The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them ... than it can abdicate its police powers in the administration of government and the preservation of the peace." Id
In light of the "immense value" the harbor of Chicago carried for the people of Illinois, the "idea that its legislature can deprive the state of control over its bed and waters, and place the same in the hands of a private corporation" could not "be defended." Id. at 454.
The natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to "protect the trust property against damage or destruction." George G. Bogett et al., Bogert's Trusts and Ttustees, § 582 (2016).
The trustee owes this duty equally to both current and future beneficiaries of the trust. Restatement (Second) of Trusts § 183 (1959).
In natural resources cases, the trust property consists of a set of resources important enough to the people to warrant public trust protection. See Mary C. Wood, A Nature's Trust: Environmental Law for a New Ecological Age 167-75 (2014).
The government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust. Id.
The public trust doctrine is generally thought to impose three types of restrictions on governmental authority: (F)irst, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,
68 Mich. L. Rev. 471, 477 (1970).
This lawsuit is part of a wave of recent environmental cases asserting state and national governments have abdicated their responsibilities under the public trust doctrine. See, e.g., Alec L. v. Jackson, 863 F. Supp. 2d 11(D.D.C.2012); Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015); Kanukex rel. Kanuk v. State, Dep 't of Natural Res., 335 P.3d 1088 (Alaska 2014); Chernaik v. Kitzhaber, 328 P.3d 799 (Or. Ct. App. 2014).
These lawsuits depart from the "traditional" public trust litigation model, which generally centers on the second restriction, the prohibition against alienation of a public trust asset.
Instead, plaintiffs assert defendants have violated their duties as trustees by nominally retaining control over trust assets while actually allowing their depletion and destruction, effectively violating the first and third restrictions by excluding the public from use and enjoyment of public resources.
Defendants and intervenors argue the public trust doctrine has no application in this case.
They advance four arguments: (1) the atmosphere, the central natural resource at issue in this lawsuit, is not a public trust asset; (2) the federal government, unlike the states, has no public trust obligations; (3) any common-law public trust claims have been displaced by federal statutes; and (4) even if there is a federal public trust, plaintiffs lack a right of action to enforce it.
I address each contention in turn.
TO BE CONTINUED ...
In its broadest sense, the term "public trust" refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi, 101 U.S. 814, 820 (1879) ("(T)he power of governing is a trust committed by the people to the government, no part of which can be granted away.")
The public trust doctrine rests on the fundamental principle that
"(e)very succeeding legislature possesses the same jurisdiction and power with respect to [the public interest] as its predecessors." Newton v. Mahoning Cnty. Comm'rs, 100 U.S. 548, 559 (1879).
The doctrine conceives of certain powers and obligations - for example, the police power - as inherent aspects of sovereignty. Id. at 554.
Permitting the government to permanently give one of these powers to another entity runs afoul of the public trust doctrine because it diminishes the power of future legislatures to promote the general welfare.
Plaintiffs' public trust claims arise from the particular application of the public trust doctrine to essential natural resources.
With respect to these core resources, the sovereign's public trust obligations prevent it from "depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens." Br. of Amici Curiae Global Catholic Climate Movement and Leadership Council of Women Religious at 3 (footnote omitted) (doc. 51-1).
Application of the public trust doctrine to natural resources predates the United States of America.
Its roots are in the Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the "foundation for modern civil law systems." Timothy G. Kearley, Justice Fred Blume and the Translation of Justinian's Code, 99 Law Libr. J. 525, if 1 (2007).
The Institutes of Justinian declared "the following things are by natural law common to all - the air, running water, the sea, and consequently the seashore." J. Inst. 2.1.1 (J.B. Moyle trans.).
The doctrine made its way to the United States through the English common law. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 284 (1997) ("American law adopted as its own much of the English law respecting navigable waters, including the principle that submerged lands are held for a public purpose."); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473 (1988) ("At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation ... Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders[.]" (quoting Shively v. Bowlby, 152 U.S. 1, 57 (1894)); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 475-76 (1970) (discussing the history of the public trust doctrine in the United States).
The first court in this country to address the applicability of the public trust doctrine to natural resources was the New Jersey Supreme Court, in 1821.
The court explained that public trust assets were part of a taxonomy of property: Every thing susceptible of property is considered as belonging to the nation that possesses the country, as forming the entire mass of its wealth.
But the nation does not possess all those things in the same manner.
By very far the greater part of them are divided among the individuals of the nation, and become private property.
Those things not divided among the individuals still belong to the nation, and are called public property.
Of these, again, some are reserved for the necessities of the state, and are used for the public benefit, and those are called "the domain of the crown or of the republic," others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property.
Of this latter kind, according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish, and the wild beasts. Arnold v. Mundy, 6 N.J.L. 1, 71 (N.J. 1821) (emphasis in original).
The seminal United States Supreme Court case on the public trust is Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892).
The Illinois legislature had conveyed to the Illinois Central Railroad Company title to part of the submerged lands beneath the harbor of Chicago, with the intent to give the company control over the waters above the submerged lands "against any future exercise of power over them by the state." Id. at 452.
The Supreme Court held the legislature's attempt to give up its title to lands submerged beneath navigable waters was either void on its face or always subject to revocation. Id. at 453.
"The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them ... than it can abdicate its police powers in the administration of government and the preservation of the peace." Id
In light of the "immense value" the harbor of Chicago carried for the people of Illinois, the "idea that its legislature can deprive the state of control over its bed and waters, and place the same in the hands of a private corporation" could not "be defended." Id. at 454.
The natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to "protect the trust property against damage or destruction." George G. Bogett et al., Bogert's Trusts and Ttustees, § 582 (2016).
The trustee owes this duty equally to both current and future beneficiaries of the trust. Restatement (Second) of Trusts § 183 (1959).
In natural resources cases, the trust property consists of a set of resources important enough to the people to warrant public trust protection. See Mary C. Wood, A Nature's Trust: Environmental Law for a New Ecological Age 167-75 (2014).
The government, as trustee, has a fiduciary duty to protect the trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust. Id.
The public trust doctrine is generally thought to impose three types of restrictions on governmental authority: (F)irst, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,
68 Mich. L. Rev. 471, 477 (1970).
This lawsuit is part of a wave of recent environmental cases asserting state and national governments have abdicated their responsibilities under the public trust doctrine. See, e.g., Alec L. v. Jackson, 863 F. Supp. 2d 11(D.D.C.2012); Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015); Kanukex rel. Kanuk v. State, Dep 't of Natural Res., 335 P.3d 1088 (Alaska 2014); Chernaik v. Kitzhaber, 328 P.3d 799 (Or. Ct. App. 2014).
These lawsuits depart from the "traditional" public trust litigation model, which generally centers on the second restriction, the prohibition against alienation of a public trust asset.
Instead, plaintiffs assert defendants have violated their duties as trustees by nominally retaining control over trust assets while actually allowing their depletion and destruction, effectively violating the first and third restrictions by excluding the public from use and enjoyment of public resources.
Defendants and intervenors argue the public trust doctrine has no application in this case.
They advance four arguments: (1) the atmosphere, the central natural resource at issue in this lawsuit, is not a public trust asset; (2) the federal government, unlike the states, has no public trust obligations; (3) any common-law public trust claims have been displaced by federal statutes; and (4) even if there is a federal public trust, plaintiffs lack a right of action to enforce it.
I address each contention in turn.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
A. Scope of Public Trust Assets
The complaint alleges defendants violated their duties as trustees by failing to protect the atmosphere, water, seas, seashores, and wildlife. First Am. Compl. iJ 309.
Defendants and intervenors argue plaintiffs' public trust claims fail because the complaint focuses on harm to the atmosphere, which is not a public trust asset.
I conclude that it is not necessary at this stage to determine whether the atmosphere is a public trust asset because plaintiffs have alleged violations of the public trust doctrine in connection with the territorial sea.
The federal government holds title to the submerged lands between three and twelve miles from the coastlines of the United States. See Restatement (Third) of The Foreign Relations Law of the United States § 51 l(a) (1987) (international law permits a nation to claim as its territorial sea an area up to twelve miles from its coast); Presidential Proclamation of Dec. 27, 1988, No. 5928, 3 C.F.R. § 547 (1989) (President Reagan expanding United States' claim from three-mile territorial sea to twelve-mile territorial sea); 43 U.S.C. § 1312 (seaward boundary of a coastal state is "a line three geographical miles distant from its coast line").
Time and again, the Supreme Court has held that the public trust doctrine applies to "lands beneath tidal waters." See Phillips Petroleum Co., 484 U.S. at 474 (discussing Shively, 152 U.S. at 57 and Knight v. US. Land Ass'n, 142 U.S. 161, 183 (1891)); Alabama v. Texas, 347 U.S. 272, 278 (1954) (Black, J., dissenting) ("In ocean waters bordering our country, if nowhere else, day-to-day national power - complete, undivided, flexible, and immediately available - is an essential attribute of federal sovereignty."); id. at 282 (Douglas, J., dissenting) ("Thus we are dealing here with incidents of national sovereignty .... The authority over [the sea] can no more be abdicated than any of the other great powers of the Federal Government. It is to be exercised for the benefit of the whole."); see also Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 556 (1970) (public trust law covers "that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence").
Because a number of plaintiffs' injuries relate to the effects of ocean acidification and rising ocean temperatures,' they have adequately alleged harm to public trust assets.
10 To be clear, today's opinion should not be taken to suggest that the atmosphere is not a public trust asset.
The Institutes of Justinian included the air in the list of assets "by natural law common to all." J. Inst. 2.1.l (J.B. Moyle trans.).
The New Jersey Supreme Court in Arnold similarly included air in its list of "common property." 6 N.J.L. at 71.
Even Supreme Court case law suggests the atmosphere may properly be deemed part of the public trust res. See United States v. Causby, 328 U.S. 256, 261 (1946) (holding that private rights to airspace have "no place in the modern world" because recognition of such claims would "transfer into private ownership that to which only the public has a just claim.")
The dearth of litigation focusing on atmosphere may reflect the limited state of scientific knowledge rather than signal a determination that the air is outside the scope of the public trust. See Mary C. Wood, Atmospheric Trust Litigation Across the World, in Fiduciary Duty and the Atmospheric Trust 113 (Ken Coghill et al. Eds. 2012) (hypothesizing that the atmosphere does not appear in early public trust case law because air was long thought to be indestructible and incapable of privatization).
Even if the atmosphere was not always considered a public trust asset, some courts have concluded the doctrine should "be molded and extended to meet changing conditions and needs of the public it was created to benefit.'' Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984) (citation and quotation marks omitted).
Just last year, Judge Hollis Hill reasoned that it "misses the point" to mechanically rely on what has been identified as a public trust asset in the past because "(t)he navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that [greenhouse gas] emissions do not affect navigable waters is nonsensical." Foster v. Wash. Dep't of Ecology, No. 14-2-25295-1, slip op. at 8 (Wash. King Cnty. Super. Ct. Nov. 19, 2015).
At least one state court has held in recent years that "the concept of public natural resources includes not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property.'' Robinson Twp., Wash. Cnty., Pa. v. Pennsylvania, 83 A.3d 901, 955 (Pa. Sup. Ct. 2013).
The Supreme Court arguably endorsed this pragmatic approach to the identification of trust assets in Illinois Central, where it held, contrary to English common law, that lakes and rivers unaffected by the ebb and flow of the tide could be navigable waters within the meaning of the public trust doctrine. 146 U.S. at 436 (English rule for determining navigability would not work in the United States, which contains "rivers [that] are navigable for great distances above the flow of the tide - indeed, for hundreds of miles").
11 See, e.g., First Am. Compl.~ 16 ("An important part of Kelsey's diet includes food that comes from the marine waters and freshwater rivers, including salmon, cod, tuna, clams, mussels, and crab."); id. ~ 27 ("Other food sources for Alex, including crab and seafood, are negatively impacted by ocean acidification, warming, and sea level rise caused by Defendants."); id. ~ 33 ("Ocean acidification caused by Defendants has already begun to adversely impact shellfish along the coast, and is predicted to take its toll on crab, mussels, and all shelled seafood."); id. ~ 45 ("On the Oregon coast, Sahara enjoys climbing rocks and sand dunes, swimming, and tidepooling to see marine life. Sahara's enjoyment of these activities is being increasingly harmed in the future by sea level rise, greater erosion, enhanced ocean acidification, and increased water temperatures.").
TO BE CONTINUED ...
The complaint alleges defendants violated their duties as trustees by failing to protect the atmosphere, water, seas, seashores, and wildlife. First Am. Compl. iJ 309.
Defendants and intervenors argue plaintiffs' public trust claims fail because the complaint focuses on harm to the atmosphere, which is not a public trust asset.
I conclude that it is not necessary at this stage to determine whether the atmosphere is a public trust asset because plaintiffs have alleged violations of the public trust doctrine in connection with the territorial sea.
The federal government holds title to the submerged lands between three and twelve miles from the coastlines of the United States. See Restatement (Third) of The Foreign Relations Law of the United States § 51 l(a) (1987) (international law permits a nation to claim as its territorial sea an area up to twelve miles from its coast); Presidential Proclamation of Dec. 27, 1988, No. 5928, 3 C.F.R. § 547 (1989) (President Reagan expanding United States' claim from three-mile territorial sea to twelve-mile territorial sea); 43 U.S.C. § 1312 (seaward boundary of a coastal state is "a line three geographical miles distant from its coast line").
Time and again, the Supreme Court has held that the public trust doctrine applies to "lands beneath tidal waters." See Phillips Petroleum Co., 484 U.S. at 474 (discussing Shively, 152 U.S. at 57 and Knight v. US. Land Ass'n, 142 U.S. 161, 183 (1891)); Alabama v. Texas, 347 U.S. 272, 278 (1954) (Black, J., dissenting) ("In ocean waters bordering our country, if nowhere else, day-to-day national power - complete, undivided, flexible, and immediately available - is an essential attribute of federal sovereignty."); id. at 282 (Douglas, J., dissenting) ("Thus we are dealing here with incidents of national sovereignty .... The authority over [the sea] can no more be abdicated than any of the other great powers of the Federal Government. It is to be exercised for the benefit of the whole."); see also Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 556 (1970) (public trust law covers "that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence").
Because a number of plaintiffs' injuries relate to the effects of ocean acidification and rising ocean temperatures,' they have adequately alleged harm to public trust assets.
10 To be clear, today's opinion should not be taken to suggest that the atmosphere is not a public trust asset.
The Institutes of Justinian included the air in the list of assets "by natural law common to all." J. Inst. 2.1.l (J.B. Moyle trans.).
The New Jersey Supreme Court in Arnold similarly included air in its list of "common property." 6 N.J.L. at 71.
Even Supreme Court case law suggests the atmosphere may properly be deemed part of the public trust res. See United States v. Causby, 328 U.S. 256, 261 (1946) (holding that private rights to airspace have "no place in the modern world" because recognition of such claims would "transfer into private ownership that to which only the public has a just claim.")
The dearth of litigation focusing on atmosphere may reflect the limited state of scientific knowledge rather than signal a determination that the air is outside the scope of the public trust. See Mary C. Wood, Atmospheric Trust Litigation Across the World, in Fiduciary Duty and the Atmospheric Trust 113 (Ken Coghill et al. Eds. 2012) (hypothesizing that the atmosphere does not appear in early public trust case law because air was long thought to be indestructible and incapable of privatization).
Even if the atmosphere was not always considered a public trust asset, some courts have concluded the doctrine should "be molded and extended to meet changing conditions and needs of the public it was created to benefit.'' Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984) (citation and quotation marks omitted).
Just last year, Judge Hollis Hill reasoned that it "misses the point" to mechanically rely on what has been identified as a public trust asset in the past because "(t)he navigable waters and the atmosphere are intertwined and to argue a separation of the two, or to argue that [greenhouse gas] emissions do not affect navigable waters is nonsensical." Foster v. Wash. Dep't of Ecology, No. 14-2-25295-1, slip op. at 8 (Wash. King Cnty. Super. Ct. Nov. 19, 2015).
At least one state court has held in recent years that "the concept of public natural resources includes not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property.'' Robinson Twp., Wash. Cnty., Pa. v. Pennsylvania, 83 A.3d 901, 955 (Pa. Sup. Ct. 2013).
The Supreme Court arguably endorsed this pragmatic approach to the identification of trust assets in Illinois Central, where it held, contrary to English common law, that lakes and rivers unaffected by the ebb and flow of the tide could be navigable waters within the meaning of the public trust doctrine. 146 U.S. at 436 (English rule for determining navigability would not work in the United States, which contains "rivers [that] are navigable for great distances above the flow of the tide - indeed, for hundreds of miles").
11 See, e.g., First Am. Compl.~ 16 ("An important part of Kelsey's diet includes food that comes from the marine waters and freshwater rivers, including salmon, cod, tuna, clams, mussels, and crab."); id. ~ 27 ("Other food sources for Alex, including crab and seafood, are negatively impacted by ocean acidification, warming, and sea level rise caused by Defendants."); id. ~ 33 ("Ocean acidification caused by Defendants has already begun to adversely impact shellfish along the coast, and is predicted to take its toll on crab, mussels, and all shelled seafood."); id. ~ 45 ("On the Oregon coast, Sahara enjoys climbing rocks and sand dunes, swimming, and tidepooling to see marine life. Sahara's enjoyment of these activities is being increasingly harmed in the future by sea level rise, greater erosion, enhanced ocean acidification, and increased water temperatures.").
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
B. Applicability of Public Trust to the Federal Government
Defendants and intervenors contend that in the United States, the public trust doctrine applies only to the states and not to the federal government.
This argument rests primarily on a passing statement in PPL Montana, LLC v. Montana, 565 U.S. 576(2012).
A close examination of that case reveals that it cannot fairly be read to foreclose application of the public trust doctrine to assets owned by the federal government.
PPL Montana was not a public trust case.
Its central concern was the equal footing doctrine.
PPL Montana, LLC used three rivers flowing through the state of Montana for hydroelectric projects. Id. at 580.
Montana sought rent for the use of the riverbeds, arguing it had gained title to the rivers pursuant to the equal footing doctrine when it became a state in 1889. Id.
The Montana Supreme Court granted summary judgment on title to Montana.
On writ of certiorari to the United States Supreme Court, review hinged on whether the rivers in question were "navigable" in 1889, because the "title consequences of the equal-footing doctrine" are that "(u)pon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced .. . )[.]" Id. at 589-90.
The Court reversed and remanded, holding that the Montana courts had applied the wrong methodology for determining navigability.
In addition to its main argument that the rivers were navigable, Montana argued that denying it title to the riverbeds in dispute would "undermine the public trust doctrine." Id. at 601.
The Supreme Court rejected this argument in short order:
Unlike the equal-footing doctrine, ... which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power.
While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, the contours of that public trust do not depend upon the Constitution.
Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine. Id at 603 (citations omitted).
Defendants and intervenors take the phrase "the public trust doctrine remains a matter of state law," and interpret it in isolation to foreclose all federal public trust claims.
That is not a plausible interpretation of PPL Montana.
The Court was simply stating that federal law, not state law, determined whether Montana has title to the riverbeds, and that if Montana had title, state law would define the scope of Montana's public trust obligations.
PPL Montana said nothing at all about the viability of federal public trust claims with respect to federally-owned trust assets.
In a string citation, PPL Montana cited Coeur d'Alene, 521 U.S. at 285, and Appleby v. City of New York, 271 U.S. 364, 395 (1926), for the proposition that Illinois Central "was necessarily a statement of Illinois law." 132 S. Ct. at 1235.
That statement is not surprising given the nature of the public trust doctrine.
Public trust obligations are inherent aspects of sovereignty; it follows that any case applying the public trust doctrine to a particular state is necessarily a statement of that state's law rather than a statement of the law of another sovereign.
In Coeur d'Alene, the Supreme Court explained that even thoughIllinois Central interpreted Illinois law, its central tenets could be applied broadly (for example, to Idaho) because it "invoked the principle in American law recognizing the weighty public interests in submerged lands." 521 U.S. at 285.
The Court then detailed how the American public trust doctrine, which has diverged from the English public trust doctrine in important ways, has developed as "a natural outgrowth of the perceived public character of submerged lands, a perception which underlies and informs the principle that these lands are tied in a unique way to sovereignty." Id. at 286.
There is no reason why the central tenets of Illinois Central should apply to another state, but not to the federal government.
Defendants and intervenors also contend recognizing a federal public trust claim is contrary to United States v. 32.42 Acres of Land, More or Less, Located in San Diego County, California, 683 F.3d 1030, 1038 (9th Cir. 2012), which repeated PPL Montana's statement that "the public trust doctrine remains a matter of state law" in concluding that the federal government's eminent domain powers trumped any state-law public trust concerns.
That case did not foreclose a federal public trust claim, however, because the Ninth Circuit expressly declined to address the viability of the federal public trust the district court imposed on the federal government after it ruled the land could be taken pursuant to eminent domain. Id. at 1033 & 1039 n.2.
In 2012, the federal district court for the District of Columbia held the public trust doctrine does not apply to the federal government.
Alec L. was substantially similar to the instant action: five youth plaintiffs and two environmental advocacy organizations sued a variety of heads of federal agencies, alleging the defendants had "wasted and failed to preserve and protect the atmosphere Public Trust asset." 863 F. Supp. 2d at 12.
The court dismissed the suit with prejudice, holding the plaintiffs' federal public trust claims were foreclosed by PPL Montana's statement that "the public trust doctrine remains a mater of state law." Id. at 15 (quoting PPL Montana, 565 U.S. at 603).
The court also relied on the D.C. Circuit's observation that '"(I)n this country the public trust doctrine has developed almost exclusively as a matter of state law."' Id. (quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1082 (D.C. Cir. 1984)).
In an unpublished memorandum decision, the D.C. Circuit affirmed, holding that "(t)he Supreme Court in PPL Montana ... directly and categorically rejected any federal constitutional foundation for that doctrine, without qualification or reservation." Alec L. ex rel. Loorz v. McCarthy, 561 F. App'x 7, 8 (D.C. Cir. 2014).
I am not persuaded by the reasoning of the Alec L. courts.
As explained above, a close reading of PPL Montana reveals that it says nothing about the viability of federal public trust claims.
And in Air Florida, the D.C. Circuit emphasized that "we imply no opinion regarding either the applicability of the public trust doctrine to the federal government or the appropriateness of using the doctrine to afford trustees a means for recovering from tortfeasors the cost of restoring public waters to their pre-injury condition." 750 F.2d at 1084.
Two federal courts - the district courts for the Northern District of California and the District of Massachusetts - have concluded the public trust doctrine applies to the federal government.
The decisions, from the 1980s, concerned the federal government's acquisition of various state-owned public trust assets - for example, submerged land beneath navigable rivers or tidelands - through the power of eminent domain.
The courts held that the federal government has no public trust obligations under state law, but does take the land subject to a federal public trust.
As one court explained, "(t)he trust is of such a nature that it can be held only by the sovereign, and can only be destroyed by the destruction of the sovereign." United States v. 1.58 Acres of Land Situated in the City of Boston, Suffolk Cnty., Mass., 523 F. Supp. 120, 124 (D. Mass. 1981).
Through eminent domain, the federal government "may take property ... in 'full fee simple' insofar as no other principal may hold a greater right to such land."
"It must be recognized, however, that the federal government is as restricted as the Commonwealth in its ability to abdicate to private individuals" its title to the land. Jd. at 124-25.
In other words, "(b)y condemnation, the United States simply acquires the land subject to the public trust as though no party had held an interest in the land before." City of Alameda v. Todd Shipyards Corp., 635 F. Supp. 1447, 1450 (N.D. Cal. 1986).
32.42 Acres of Land is wholly consistent with these opinions; in that case, the Ninth Circuit held that when the federal government condemns state land, it takes title free and clear of any state public trust obligations - and that to hold otherwise would violate the Supremacy Clause by subjugating the federal eminent domain power to state public trust law. 683 F.3d at 1038.
As noted, however, the court said nothing about the lower court's determination that the condemned tidelands had been taken subject to a federal public trust. 32.42 Acres of Land, 683 F.3d at 1033 & 1039 n.2.
I am persuaded that the City of Alameda and 1.58 Acres of Land courts were correct.
Their decisions rested on the history of the public trust doctrine and the public trust's unique relationship to sovereignty.
I can think of no reason why the public trust doctrine, which came to this country through the Roman and English roots of our civil law system, would apply to the states but not to the federal government.
Defendants' final argument is that recognition of a federal public trust doctrine cannot be reconciled with Kleppe v. New Mexico, 426 U.S. 529, 539 (1976), in which the Supreme Court stated that "(t)he power over public land" entrusted to Congress by the Property Clause of the United States Constitution is "without limitations."
Again, defendants take the Supreme Court's statement out of context.
In Kleppe, New Mexico challenged the federal government's authority to regulate and protect wild horses and burros, arguing that the Constitution granted Congress only the power to "dispose of and make incidental rules regarding the use of federal property" and "the power to protect" the federal property itself, i.e., the land but not animals living on it. 426 U.S. at 536.
The Supreme Court rejected New Mexico's attempt to limit Congress's power to regulate wildlife living on federal lands.
It is in that context that the Court stated the "power over public land" was "without limitations." Id at 539.
Indeed, in the very same sentence the Supreme Court acknowledged that "the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved[.]" Id.
The Supreme Court in Kleppe simply did not have before it the question whether the Constitution grants the federal government unlimited authority to do whatever it wants with any parcel of federal land, regardless of whether its actions violate individual constitutional rights or run afoul of public trust obligations.
The federal government, like the states, holds public assets - at a minimum, the territorial seas - in trust for the people.
Plaintiffs' federal public trust claims are cognizable in federal court.
TO BE CONTINUED ...
Defendants and intervenors contend that in the United States, the public trust doctrine applies only to the states and not to the federal government.
This argument rests primarily on a passing statement in PPL Montana, LLC v. Montana, 565 U.S. 576(2012).
A close examination of that case reveals that it cannot fairly be read to foreclose application of the public trust doctrine to assets owned by the federal government.
PPL Montana was not a public trust case.
Its central concern was the equal footing doctrine.
PPL Montana, LLC used three rivers flowing through the state of Montana for hydroelectric projects. Id. at 580.
Montana sought rent for the use of the riverbeds, arguing it had gained title to the rivers pursuant to the equal footing doctrine when it became a state in 1889. Id.
The Montana Supreme Court granted summary judgment on title to Montana.
On writ of certiorari to the United States Supreme Court, review hinged on whether the rivers in question were "navigable" in 1889, because the "title consequences of the equal-footing doctrine" are that "(u)pon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced .. . )[.]" Id. at 589-90.
The Court reversed and remanded, holding that the Montana courts had applied the wrong methodology for determining navigability.
In addition to its main argument that the rivers were navigable, Montana argued that denying it title to the riverbeds in dispute would "undermine the public trust doctrine." Id. at 601.
The Supreme Court rejected this argument in short order:
Unlike the equal-footing doctrine, ... which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power.
While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, the contours of that public trust do not depend upon the Constitution.
Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine. Id at 603 (citations omitted).
Defendants and intervenors take the phrase "the public trust doctrine remains a matter of state law," and interpret it in isolation to foreclose all federal public trust claims.
That is not a plausible interpretation of PPL Montana.
The Court was simply stating that federal law, not state law, determined whether Montana has title to the riverbeds, and that if Montana had title, state law would define the scope of Montana's public trust obligations.
PPL Montana said nothing at all about the viability of federal public trust claims with respect to federally-owned trust assets.
In a string citation, PPL Montana cited Coeur d'Alene, 521 U.S. at 285, and Appleby v. City of New York, 271 U.S. 364, 395 (1926), for the proposition that Illinois Central "was necessarily a statement of Illinois law." 132 S. Ct. at 1235.
That statement is not surprising given the nature of the public trust doctrine.
Public trust obligations are inherent aspects of sovereignty; it follows that any case applying the public trust doctrine to a particular state is necessarily a statement of that state's law rather than a statement of the law of another sovereign.
In Coeur d'Alene, the Supreme Court explained that even thoughIllinois Central interpreted Illinois law, its central tenets could be applied broadly (for example, to Idaho) because it "invoked the principle in American law recognizing the weighty public interests in submerged lands." 521 U.S. at 285.
The Court then detailed how the American public trust doctrine, which has diverged from the English public trust doctrine in important ways, has developed as "a natural outgrowth of the perceived public character of submerged lands, a perception which underlies and informs the principle that these lands are tied in a unique way to sovereignty." Id. at 286.
There is no reason why the central tenets of Illinois Central should apply to another state, but not to the federal government.
Defendants and intervenors also contend recognizing a federal public trust claim is contrary to United States v. 32.42 Acres of Land, More or Less, Located in San Diego County, California, 683 F.3d 1030, 1038 (9th Cir. 2012), which repeated PPL Montana's statement that "the public trust doctrine remains a matter of state law" in concluding that the federal government's eminent domain powers trumped any state-law public trust concerns.
That case did not foreclose a federal public trust claim, however, because the Ninth Circuit expressly declined to address the viability of the federal public trust the district court imposed on the federal government after it ruled the land could be taken pursuant to eminent domain. Id. at 1033 & 1039 n.2.
In 2012, the federal district court for the District of Columbia held the public trust doctrine does not apply to the federal government.
Alec L. was substantially similar to the instant action: five youth plaintiffs and two environmental advocacy organizations sued a variety of heads of federal agencies, alleging the defendants had "wasted and failed to preserve and protect the atmosphere Public Trust asset." 863 F. Supp. 2d at 12.
The court dismissed the suit with prejudice, holding the plaintiffs' federal public trust claims were foreclosed by PPL Montana's statement that "the public trust doctrine remains a mater of state law." Id. at 15 (quoting PPL Montana, 565 U.S. at 603).
The court also relied on the D.C. Circuit's observation that '"(I)n this country the public trust doctrine has developed almost exclusively as a matter of state law."' Id. (quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1082 (D.C. Cir. 1984)).
In an unpublished memorandum decision, the D.C. Circuit affirmed, holding that "(t)he Supreme Court in PPL Montana ... directly and categorically rejected any federal constitutional foundation for that doctrine, without qualification or reservation." Alec L. ex rel. Loorz v. McCarthy, 561 F. App'x 7, 8 (D.C. Cir. 2014).
I am not persuaded by the reasoning of the Alec L. courts.
As explained above, a close reading of PPL Montana reveals that it says nothing about the viability of federal public trust claims.
And in Air Florida, the D.C. Circuit emphasized that "we imply no opinion regarding either the applicability of the public trust doctrine to the federal government or the appropriateness of using the doctrine to afford trustees a means for recovering from tortfeasors the cost of restoring public waters to their pre-injury condition." 750 F.2d at 1084.
Two federal courts - the district courts for the Northern District of California and the District of Massachusetts - have concluded the public trust doctrine applies to the federal government.
The decisions, from the 1980s, concerned the federal government's acquisition of various state-owned public trust assets - for example, submerged land beneath navigable rivers or tidelands - through the power of eminent domain.
The courts held that the federal government has no public trust obligations under state law, but does take the land subject to a federal public trust.
As one court explained, "(t)he trust is of such a nature that it can be held only by the sovereign, and can only be destroyed by the destruction of the sovereign." United States v. 1.58 Acres of Land Situated in the City of Boston, Suffolk Cnty., Mass., 523 F. Supp. 120, 124 (D. Mass. 1981).
Through eminent domain, the federal government "may take property ... in 'full fee simple' insofar as no other principal may hold a greater right to such land."
"It must be recognized, however, that the federal government is as restricted as the Commonwealth in its ability to abdicate to private individuals" its title to the land. Jd. at 124-25.
In other words, "(b)y condemnation, the United States simply acquires the land subject to the public trust as though no party had held an interest in the land before." City of Alameda v. Todd Shipyards Corp., 635 F. Supp. 1447, 1450 (N.D. Cal. 1986).
32.42 Acres of Land is wholly consistent with these opinions; in that case, the Ninth Circuit held that when the federal government condemns state land, it takes title free and clear of any state public trust obligations - and that to hold otherwise would violate the Supremacy Clause by subjugating the federal eminent domain power to state public trust law. 683 F.3d at 1038.
As noted, however, the court said nothing about the lower court's determination that the condemned tidelands had been taken subject to a federal public trust. 32.42 Acres of Land, 683 F.3d at 1033 & 1039 n.2.
I am persuaded that the City of Alameda and 1.58 Acres of Land courts were correct.
Their decisions rested on the history of the public trust doctrine and the public trust's unique relationship to sovereignty.
I can think of no reason why the public trust doctrine, which came to this country through the Roman and English roots of our civil law system, would apply to the states but not to the federal government.
Defendants' final argument is that recognition of a federal public trust doctrine cannot be reconciled with Kleppe v. New Mexico, 426 U.S. 529, 539 (1976), in which the Supreme Court stated that "(t)he power over public land" entrusted to Congress by the Property Clause of the United States Constitution is "without limitations."
Again, defendants take the Supreme Court's statement out of context.
In Kleppe, New Mexico challenged the federal government's authority to regulate and protect wild horses and burros, arguing that the Constitution granted Congress only the power to "dispose of and make incidental rules regarding the use of federal property" and "the power to protect" the federal property itself, i.e., the land but not animals living on it. 426 U.S. at 536.
The Supreme Court rejected New Mexico's attempt to limit Congress's power to regulate wildlife living on federal lands.
It is in that context that the Court stated the "power over public land" was "without limitations." Id at 539.
Indeed, in the very same sentence the Supreme Court acknowledged that "the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved[.]" Id.
The Supreme Court in Kleppe simply did not have before it the question whether the Constitution grants the federal government unlimited authority to do whatever it wants with any parcel of federal land, regardless of whether its actions violate individual constitutional rights or run afoul of public trust obligations.
The federal government, like the states, holds public assets - at a minimum, the territorial seas - in trust for the people.
Plaintiffs' federal public trust claims are cognizable in federal court.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
C. Displacement of Public Trust Claims
Defendants and intervenors next argue that any common-law public trust claims have been displaced by a variety of acts of Congress, including the Clean Air Act and the Clean Water Act.
For this proposition, they rely on American Electric Power Company, Inc. v. Connecticut, 564 U.S. 410 (2011) ("AEP").
In AEP, the plaintiffs sued five power companies, alleging the companies' C02 emissions were a public nuisance under federal common law. Id. at 415.
The Supreme Court held the nuisance claim could not proceed because "the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil fuel fired power plants." Id. at 424.
Defendants and intervenors contend that AEP controls the displacement analysis.
The district court in Alec L. agreed with them.
The court relied heavily on AEP's statement that the Clean Air Act displaces '"any federal common law right'" to challenge C02 emissions, and also discussed at length the AEP court's concerns that authorizing a judicial order setting C02 emissions limits would require federal judges to make decisions involving competing policy interests - decisions an "expert agency 'is surely better equipped to [make] than individual district judges issuing ad hoc, case-by-case injunctions."' Alec L., 863 F. Supp. 2d at 16 (quoting AEP, 564 U.S. at 424, 428).
I am not persuaded by the Alec L. court's reasoning regarding displacement.
In AEP, the Court did not have public trust claims before it and so it had no cause to consider the differences between public trust claims and other types of claims.
Public trust claims are unique because they concern inherent attributes of sovereignty.
The public trust imposes on the government an obligation to protect the res of the trust.
A defining feature of that obligation is that it cannot be legislated away.
Because of the nature of public trust claims, a displacement analysis simply does not apply.
The interplay between Congress's decision to grant regulatory authority to various federal agencies and the authority of the courts to adjudicate public trust claims raises weightier concerns.
Those concerns go to whether this case presents a nonjusticiable political question, and have been addressed in Section I of this opinion.
TO BE CONTINUED ...
Defendants and intervenors next argue that any common-law public trust claims have been displaced by a variety of acts of Congress, including the Clean Air Act and the Clean Water Act.
For this proposition, they rely on American Electric Power Company, Inc. v. Connecticut, 564 U.S. 410 (2011) ("AEP").
In AEP, the plaintiffs sued five power companies, alleging the companies' C02 emissions were a public nuisance under federal common law. Id. at 415.
The Supreme Court held the nuisance claim could not proceed because "the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil fuel fired power plants." Id. at 424.
Defendants and intervenors contend that AEP controls the displacement analysis.
The district court in Alec L. agreed with them.
The court relied heavily on AEP's statement that the Clean Air Act displaces '"any federal common law right'" to challenge C02 emissions, and also discussed at length the AEP court's concerns that authorizing a judicial order setting C02 emissions limits would require federal judges to make decisions involving competing policy interests - decisions an "expert agency 'is surely better equipped to [make] than individual district judges issuing ad hoc, case-by-case injunctions."' Alec L., 863 F. Supp. 2d at 16 (quoting AEP, 564 U.S. at 424, 428).
I am not persuaded by the Alec L. court's reasoning regarding displacement.
In AEP, the Court did not have public trust claims before it and so it had no cause to consider the differences between public trust claims and other types of claims.
Public trust claims are unique because they concern inherent attributes of sovereignty.
The public trust imposes on the government an obligation to protect the res of the trust.
A defining feature of that obligation is that it cannot be legislated away.
Because of the nature of public trust claims, a displacement analysis simply does not apply.
The interplay between Congress's decision to grant regulatory authority to various federal agencies and the authority of the courts to adjudicate public trust claims raises weightier concerns.
Those concerns go to whether this case presents a nonjusticiable political question, and have been addressed in Section I of this opinion.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
D. Enforceability of Public Trust Obligations in Federal Court
As a final challenge to plaintiffs' public trust claims, defendants contend that even if the public trust doctrine applies to the federal government, plaintiffs lack a cause of action to enforce the public trust obligations.
Relatedly, defendants argue that creation of a right of action to permit plaintiffs to assert their claims in federal court would be an exercise in federal common law-making subject to the same statutory displacement arguments outlined above.
In order to evaluate the merits of these arguments, I must first locate the source of plaintiffs' public trust claims.
I conclude plaintiffs' public trust rights both predated the Constitution and are secured by it. See Gerald Tones & Nathan Bellinger, The Public Trust: The Law's DNA, 4 Wake Forest J. L. & Pol'y 281, 288-94 (2014).
The public trust doctrine defines inherent aspects of sovereignty.
The Social Contract theory, which heavily influenced Thomas Jefferson and other Founding Fathers, provides that people possess certain inalienable rights and that governments were established by consent of the governed for the purpose of securing those rights.
Accordingly, the Declaration of Independence and the Constitution did not create the rights to life, liberty, or the pursuit of happiness - the documents are, instead, vehicles for protecting and promoting those already-existing rights. Cf Robinson Twp., 83 A.3d at 948 (plurality opinion) (rights expressed in the public trust provision of Pennsylvania Constitution are "preserved rather than created" by that document); Minors Oposa, 33 I.L.M. at 187 (the right of future generations to a "balanced and healthful ecology" is so basic that it "need not even be written in the Constitution for [it is] assumed to exist from the inception of humankind").
Governments, in turn, possess certain powers that permit them to safeguard the rights of the people; these powers are inherent in the authority to govern and cannot be sold or bargained away.
One example is the police power. Stone, 101 U.S. at 817.
Another is the status as trustee pursuant to the public trust doctrine. Illinois Central, 146 U.S. at 459-60.
Although the public trust predates the Constitution, plaintiffs' right of action to enforce the government's obligations as trustee arises from the Constitution.
I agree with Judge Coffin that plaintiffs' public trust claims are properly categorized as substantive due process claims.
As explained, the Due Process Clause's substantive component safeguards fundamental rights that are "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition." McDonald, 561 U.S. at 761, 767 (internal citations, quotations, and emphasis omitted).
Plaintiffs' public trust rights, related as they are to inherent aspects of sovereignty and the consent of the governed from which the United States' authority derives, satisfy both tests.
Because the public trust is not enumerated in the Constitution, substantive due process protection also derives from the Ninth Amendment. See U.S. Const. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."); Raich v. Gonzalez, 500 F.3d 850, 861-66 (9th Cir. 2007) (considering whether the right to use medical marijuana was a fundamental right safeguarded by the Ninth Amendment and the Fifth Amendment's substantive due
process clause).
But it is the Fifth Amendment that provides the right of action.
Plaintiffs' claims rest "directly on the Due Process Clause of the Fifth Amendment." Davis, 442 U.S. at 243 (1979); see also Carlson v. Green, 446 U.S. 14, 18 (1980) ("(T)he victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.")
They may, therefore, be asserted in federal court.
13 The Founding Fathers were also influenced by intergenerational considerations.
They believed the inalienable rights to life, liberty, and property were rooted in a philosophy of intergenerational equity.
Thomas Jefferson, for example, thought that each generation had the obligation to pass the natural estate undiminished to future generations. See Br. of Amicus Curiae John Davidson at 21-25 (doc. 60).
In a 1789 letter to James Madison, Jefferson wrote that "no man can, by natural right, oblige lands he occupied ... to the payments of debts contracted by him."
"For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to than the living, which would be the reverse of our principle."
"What is true of every member of the society individually is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals." Letter from Thomas Jefferson to James Madison, Sept. 6, 1789, in The Founders' Constitution (Philip B. Kurland & Ralph Lerner, eds.) (1986), available at
press-pubs.uchicago.edu/founders/documents/vlch2s23.html (last visited Nov. 7, 2016).
Although I find it unnecessary today to address the standing of future generations or the merits of plaintiffs' argument that youth and posterity are suspect classifications, I am mindful of the intergenerational dimensions of the public trust doctrine in issuing this opinion.
TO BE CONTINUED ...
As a final challenge to plaintiffs' public trust claims, defendants contend that even if the public trust doctrine applies to the federal government, plaintiffs lack a cause of action to enforce the public trust obligations.
Relatedly, defendants argue that creation of a right of action to permit plaintiffs to assert their claims in federal court would be an exercise in federal common law-making subject to the same statutory displacement arguments outlined above.
In order to evaluate the merits of these arguments, I must first locate the source of plaintiffs' public trust claims.
I conclude plaintiffs' public trust rights both predated the Constitution and are secured by it. See Gerald Tones & Nathan Bellinger, The Public Trust: The Law's DNA, 4 Wake Forest J. L. & Pol'y 281, 288-94 (2014).
The public trust doctrine defines inherent aspects of sovereignty.
The Social Contract theory, which heavily influenced Thomas Jefferson and other Founding Fathers, provides that people possess certain inalienable rights and that governments were established by consent of the governed for the purpose of securing those rights.
Accordingly, the Declaration of Independence and the Constitution did not create the rights to life, liberty, or the pursuit of happiness - the documents are, instead, vehicles for protecting and promoting those already-existing rights. Cf Robinson Twp., 83 A.3d at 948 (plurality opinion) (rights expressed in the public trust provision of Pennsylvania Constitution are "preserved rather than created" by that document); Minors Oposa, 33 I.L.M. at 187 (the right of future generations to a "balanced and healthful ecology" is so basic that it "need not even be written in the Constitution for [it is] assumed to exist from the inception of humankind").
Governments, in turn, possess certain powers that permit them to safeguard the rights of the people; these powers are inherent in the authority to govern and cannot be sold or bargained away.
One example is the police power. Stone, 101 U.S. at 817.
Another is the status as trustee pursuant to the public trust doctrine. Illinois Central, 146 U.S. at 459-60.
Although the public trust predates the Constitution, plaintiffs' right of action to enforce the government's obligations as trustee arises from the Constitution.
I agree with Judge Coffin that plaintiffs' public trust claims are properly categorized as substantive due process claims.
As explained, the Due Process Clause's substantive component safeguards fundamental rights that are "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition." McDonald, 561 U.S. at 761, 767 (internal citations, quotations, and emphasis omitted).
Plaintiffs' public trust rights, related as they are to inherent aspects of sovereignty and the consent of the governed from which the United States' authority derives, satisfy both tests.
Because the public trust is not enumerated in the Constitution, substantive due process protection also derives from the Ninth Amendment. See U.S. Const. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."); Raich v. Gonzalez, 500 F.3d 850, 861-66 (9th Cir. 2007) (considering whether the right to use medical marijuana was a fundamental right safeguarded by the Ninth Amendment and the Fifth Amendment's substantive due
process clause).
But it is the Fifth Amendment that provides the right of action.
Plaintiffs' claims rest "directly on the Due Process Clause of the Fifth Amendment." Davis, 442 U.S. at 243 (1979); see also Carlson v. Green, 446 U.S. 14, 18 (1980) ("(T)he victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.")
They may, therefore, be asserted in federal court.
13 The Founding Fathers were also influenced by intergenerational considerations.
They believed the inalienable rights to life, liberty, and property were rooted in a philosophy of intergenerational equity.
Thomas Jefferson, for example, thought that each generation had the obligation to pass the natural estate undiminished to future generations. See Br. of Amicus Curiae John Davidson at 21-25 (doc. 60).
In a 1789 letter to James Madison, Jefferson wrote that "no man can, by natural right, oblige lands he occupied ... to the payments of debts contracted by him."
"For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to than the living, which would be the reverse of our principle."
"What is true of every member of the society individually is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals." Letter from Thomas Jefferson to James Madison, Sept. 6, 1789, in The Founders' Constitution (Philip B. Kurland & Ralph Lerner, eds.) (1986), available at
press-pubs.uchicago.edu/founders/documents/vlch2s23.html (last visited Nov. 7, 2016).
Although I find it unnecessary today to address the standing of future generations or the merits of plaintiffs' argument that youth and posterity are suspect classifications, I am mindful of the intergenerational dimensions of the public trust doctrine in issuing this opinion.
TO BE CONTINUED ...
Re: JULIANA v. UNITED STATES OF AMERICA
CONCLUSION
Throughout their objections, defendants and intervenors attempt to subject a lawsuit alleging constitutional injuries to case law governing statutory and common-law environmental claims.
They are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws.
But that argument misses the point.
This action is of a different order than the typical environmental case.
It alleges that defendants' actions and inactions - whether or not they violate any specific statutory duty have so profoundly damaged our home planet that they threaten plaintiffs' fundamental constitutional rights to life and liberty.
A deep resistance to change runs through defendants' and intervenors' arguments for dismissal: they contend a decision recognizing plaintiffs' standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal.
This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss.
Indeed, the seriousness of plaintiffs' allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.
Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.
As Judge Goodwin recently wrote:
The current state of affairs ... reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits ....
(T)he modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court. ...
The third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches of government.
Alfred T. Goodwin, A Wake-Up Call For Judges, 2015 Wis. L. Rev. 785, 785-86, 788 (2015).
Judge Goodwin is no stranger to highly politicized legal disputes.
Nearly fifty years ago, he authored the landmark opinion that secured Oregon's ocean beaches for public use.
Private landowners wanted to construct fences and otherwise keep private the beaches in front of their properties; they brought suit to challenge an Oregon state law requiring public access to all dry sand beaches. State ex rel. Thornton v. Hay, 462 P.2d 671, 672-73 (Or. 1969).
Writing for five of the six members of the Oregon Supreme Court, then-Justice Goodwin rooted his determination the beaches were public property in a concept from English common law:
Because so much of our law is the product of legislation, we sometimes lose sight of the importance of custom as a source of law in our society.
It seems particularly appropriate in the case at bar to look to an ancient and accepted custom in this state as the source of a rule of law.
The rule in this case, based upon custom, is salutary in confirming a public right, and at the same time it takes from no man anything which he has a legitimate reason to regard as exclusively his. Id at 678.
In an argument with strong echoes in defendants' and intervenors' objections here, the plaintiff private property owner contended it was "constitutionally impermissible ... to dredge up an inapplicable, ancient English doctrine that has been universally rejected in modern America." Kathryn A. Straton, Oregon's Beaches: A Birthright Preserved 65 (Or. State Parks & Recreation 1977).
The Oregon Supreme Court was not persuaded by this call to judicial conservatism.
Because of the application of an ancient doctrine, Oregon's beaches remain open to the public now and forever.
"A strong and independent judiciary is the cornerstone of our liberties."
These words, spoken by Oregon Senator Mark 0. Hatfield, are etched into the walls of the Portland United States courthouse for the District of Oregon.
The words appear on the first floor, a daily reminder that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury, 5 U.S. at 177.
Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.
I ADOPT Judge Coffin's Findings & Recommendation (doc. 68), as elaborated in this opinion.
Defendants' Motion to Dismiss (doc. 27) and Intervenors' Motion to Dismiss (doc. 19) are DENIED.
IT IS SO ORDERED. Dated this 16th of November 2016.
Ann Aiken United States District Judge
14 The sixth justice concurred in the judgment.
He found the English rule of custom useful by analogy, but would have held the beaches were public property pursuant to the public trust doctrine. Hay, 462 P.2d at 679 (Denecke, J., concurring) ("These rights of the public in tidelands and in the beds of navigable streams have been called 'jus publicum' and we have consistently and recently reaffirmed their existence.").
Throughout their objections, defendants and intervenors attempt to subject a lawsuit alleging constitutional injuries to case law governing statutory and common-law environmental claims.
They are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws.
But that argument misses the point.
This action is of a different order than the typical environmental case.
It alleges that defendants' actions and inactions - whether or not they violate any specific statutory duty have so profoundly damaged our home planet that they threaten plaintiffs' fundamental constitutional rights to life and liberty.
A deep resistance to change runs through defendants' and intervenors' arguments for dismissal: they contend a decision recognizing plaintiffs' standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal.
This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss.
Indeed, the seriousness of plaintiffs' allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.
Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.
As Judge Goodwin recently wrote:
The current state of affairs ... reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits ....
(T)he modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court. ...
The third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches of government.
Alfred T. Goodwin, A Wake-Up Call For Judges, 2015 Wis. L. Rev. 785, 785-86, 788 (2015).
Judge Goodwin is no stranger to highly politicized legal disputes.
Nearly fifty years ago, he authored the landmark opinion that secured Oregon's ocean beaches for public use.
Private landowners wanted to construct fences and otherwise keep private the beaches in front of their properties; they brought suit to challenge an Oregon state law requiring public access to all dry sand beaches. State ex rel. Thornton v. Hay, 462 P.2d 671, 672-73 (Or. 1969).
Writing for five of the six members of the Oregon Supreme Court, then-Justice Goodwin rooted his determination the beaches were public property in a concept from English common law:
Because so much of our law is the product of legislation, we sometimes lose sight of the importance of custom as a source of law in our society.
It seems particularly appropriate in the case at bar to look to an ancient and accepted custom in this state as the source of a rule of law.
The rule in this case, based upon custom, is salutary in confirming a public right, and at the same time it takes from no man anything which he has a legitimate reason to regard as exclusively his. Id at 678.
In an argument with strong echoes in defendants' and intervenors' objections here, the plaintiff private property owner contended it was "constitutionally impermissible ... to dredge up an inapplicable, ancient English doctrine that has been universally rejected in modern America." Kathryn A. Straton, Oregon's Beaches: A Birthright Preserved 65 (Or. State Parks & Recreation 1977).
The Oregon Supreme Court was not persuaded by this call to judicial conservatism.
Because of the application of an ancient doctrine, Oregon's beaches remain open to the public now and forever.
"A strong and independent judiciary is the cornerstone of our liberties."
These words, spoken by Oregon Senator Mark 0. Hatfield, are etched into the walls of the Portland United States courthouse for the District of Oregon.
The words appear on the first floor, a daily reminder that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury, 5 U.S. at 177.
Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.
I ADOPT Judge Coffin's Findings & Recommendation (doc. 68), as elaborated in this opinion.
Defendants' Motion to Dismiss (doc. 27) and Intervenors' Motion to Dismiss (doc. 19) are DENIED.
IT IS SO ORDERED. Dated this 16th of November 2016.
Ann Aiken United States District Judge
14 The sixth justice concurred in the judgment.
He found the English rule of custom useful by analogy, but would have held the beaches were public property pursuant to the public trust doctrine. Hay, 462 P.2d at 679 (Denecke, J., concurring) ("These rights of the public in tidelands and in the beds of navigable streams have been called 'jus publicum' and we have consistently and recently reaffirmed their existence.").