During President Trump first year in office, there has been a sharp rehearsal in environmental policy thinking. Contrary to the previous Administration, the new National Security Plan puts industry before environment and even the word ‘climate change’ is defined as a ‘hoax’, a road block in making ‘America Great Again’.

It is in this scenario that it is interesting to analyse the case of Juliana vs U.S.

United States v. U.S. District Court for District of Oregon, 17-71692, 9th Cir.-

The case was first submitted for declaratory and injunctive relief to the District of Oregon in 2015, during President Obama administration. The plaintiffs, all underage at the time of submission, and supported by the pro-bono lawyers of Our Children’s Trust argued that the government’s actions against climate change failed to protect essential public trust resources thus violating present and future generations’ constitutional rights to life, liberty and, property.

The case argument stressed four points:

  1. The federal government is obliged by the U.S. Constitution to hold in trust the nation’s natural resources and to protect the health and well-being of its citizens;
  2. Climate change is a man-made harm, and this can be fact checked by numerous peer reviewed articles and by the scientist community –this is not disputed by the defendants-;
  3. The plaintiffs represent present and especially future generations thus they must be owned a higher degree of protection;
  4. The federal government is responsible for malfeasance.

The plaintiffs asked the Government and the Court to redress the harm done through stricter regulation and monetary compensation.

In April 2016, the U.S. government under Obama Administration, filed a motion to have the case dismissed, and it was denied. In November 2016, the U.S. District court made public the decision to set a trial date for February 2018.

In June 2017, the U.S. government under Trump Administration, appealed again the decision to no avail. In July 2017, they wrote a writ of mandamus to the Ninth Court of Appeal blocking all proceeding and calling for the District’s court decision to be reconsidered on the ground that, the claims are meritless, and the process of discovery would be too onerous.

 The Ninth Circuit Court invited the plaintiffs to respond at the hearing which took place last December, if it will be overruled the trial is set to start this February.

Why is this case so ground breaking, and what will be the consequences if the writ of mandamus is overruled and the trial will start in February?

The centre of this debate is Natural Capital defined as the world’s stocks of natural assets which are geology, soil, air, water and the living things. It is clear that, at the very heart of the lawsuits stands the question of who owns the Earth resources and, to what extent the general public can claim the services that the Earth provides as common property.

Furthermore, while at State level local environmental problems can sometimes be addressed by existing governmental bodies, at inter-State level there is often a lack of authority that can implement and enforce environmental policies. This enormous diversity, Sax (1970) argues, is not just the product of different legal skills, it is attributable to the enormous disparity in legal standards which govern different resource problems. Thus, the U.S. legal system currently in place provides specific and limited responses to particular problems.

Finally, according to Trump Administration National Strategy, industry must be put before environment. While economic growth and a healthy environment are outcomes that everybody would love to have since both provide utilities to the recipients there is an inescapable intrinsic trade-off between economic activity and environmental preservation.

This lawsuit is trying to address this issues by putting environmental preservation first place, enshrining the right of a healthy environment has a constitutional right. The plaintiffs appealed to the 5th Amendment of the U.S. Constitution and used the Doctrine of Public Trust as a cornerstone for the lawsuits asserting that, government’s actions against climate change failed to protect essential public trust resources thus violating a generation’s constitutional rights to life, liberty and, property. By employing the widest possible definition of the Doctrine of Public Trust this lawsuit is trying to redefine environmental resources as a collective right of all people.

The rights the Juliana plaintiffs are looking to have established would be constitutionally based and, therefore, protected from Congressional infringement. –think of Brown v. Board of EducationRoe v. Wade and Obergefell v. Hodges-The case also will give the judiciary the chance to advance U.S. climate change policy by incremental decision until such time as the Congress is able to enact a comprehensive climate change legislative framework.

The lawsuit is therefore a new type of climate litigation, since the claims brought against the federal government were in fact grounded in constitutional rights. In the past, climate change cases used to take the form of statutory disputes rather than constitutional or common law disputes giving them less legislative power.

Is there hope of a writ of mandamus’ overrule?

There is hope. For two reasons.

The Courts have already been highly sympathetic to the cause, and in particular to the view that the Government has public trust duties with respect to natural resources. U.S. District Judge Ann Aiken stated: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

Since the EPA and the Executive are rolling back at break neck speed every regulation on greenhouse emissions and Congress lending a helping hand, the Courts will only feel it is their duty to do everything in their power to counteract the damage done. And they have done it before. For instance in ,Brown v. Board of EducationRoe v. Wade and Obergefell v. Hodges.

*Since the writing of this piece, on 07/03/2018, the writ of mandamus has been denied without prejudice.