Document Type

Article

Publication Title

Oregon Law Review

Abstract

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO2 - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, has pursued a 3-pronged strategy, including a concerted disinformation campaign, designed to deny the existence of global warming and its primary cause; and (3) reveal how the fossil fuel industry has utilized its 3-pronged strategy, including enormous campaign contributions and continual lobbying, to prevent the U.S. Congress and the U.S. Executive Branch from regulating the fossil fuel industry and holding it accountable for global warming.

Then, in the remainder of this article, I argue that the opinion of the U.S. Court of Appeals for the Ninth Circuit in the case of Juliana v. United States, 217 F. Supp.3d 1224 (Or. 2016), rev’d, 947 F.3d 1159 (9th Cir. 2020), to the effect that the twenty-one youth plaintiffs who sued the U.S. Executive Branch in this case do not possess standing to pursue this case is incorrect. In their complaint, the youth plaintiffs in Juliana contended that the U.S. Executive Branch, through its active promotion of the fossil fuel industry, is violating their Fifth Amendment rights to life, liberty, and property, and they requested that the court issue a declaratory judgment to that effect and order the U.S. Executive Branch to implement a plan to decrease CO2 emissions in the U.S.

Both the U.S. District Court and the Ninth Circuit in Juliana agreed that the plaintiffs had pled sufficient facts to establish that they have suffered particularized harm as a result of the U.S. Executive Branch’s active promotion of the fossil fuel industry. The U.S. District Court also held that it possesses the power to grant the two forms of relief requested by the plaintiffs and furthermore there is a substantial likelihood that those forms of relief will at least slow or reduce the harm that the plaintiffs are suffering on account of global warming. Accordingly, the U.S. District Court denied the defendants’ motion to dismiss on the ground that the plaintiffs lack standing to obtain either of their requested forms of relief. The Ninth Circuit, however, held that a federal court does not possess the power to order the U.S. Executive Branch to implement a plan to decrease CO2 emissions and the plaintiffs do not possess standing to obtain a declaratory judgment because such a judgment would only provide the plaintiffs with “psychic satisfaction,” which would not remedy the plaintiffs’ injuries-in-fact. Therefore, the Ninth Circuit held that the U.S. District Court should have granted the defendants’ motion to dismiss the case for lack of standing and reversed the U.S. District Court’s opinion on this point.

Both parts of the Ninth Circuit’s opinion are absurd. With respect to the plaintiff’s request for injunctive relief, the Ninth Circuit stated that the plaintiffs must seek relief not from the U.S. Judicial Branch, but from the two political branches of government, the U.S. Congress and the U.S. Executive Branch, with the latter actually being the defendant in this case. Not surprisingly, no other court has held that the plaintiff must seek relief from the defendant for injuries that the defendant has inflicted on the plaintiff, while the court itself is powerless to provide any relief to the plaintiff. Furthermore, one of the Juliana plaintiffs’ main arguments is that the two political branches of the U.S. government have continued to promote the fossil fuel industry’s interests for decades because they have been corrupted by the various machinations of this industry and accordingly these branches of the U.S. government, in the absence of a court order, cannot be relied upon to regulate the fossil fuel industry and protect the plaintiffs from global warming. Finally, the Ninth Circuit’s holding on injunctive relief suggested that the plaintiffs can simply replace major officials of the U.S. Executive Branch and the U.S. Congress at the ballot box. This suggestion is particularly obnoxious, as it ignores the fact that most of the plaintiffs were minors at the time that they filed their suit and minors cannot vote in U.S. elections. I plan to address the Ninth Circuit’s holding regarding the plaintiffs’ requested injunction in a further paper.

Lest We Be Lemmings addresses the Ninth Circuit’s holding that the plaintiffs do not even possess standing to obtain their requested declaratory judgment because such a judgment would only provide the plaintiffs with “psychic satisfaction” that would not remedy plaintiff’s injuries-in-fact. A declaratory judgment issued by a U.S. federal court and stating that the U.S. Executive Branch is violating the plaintiffs’ Fifth Amendment rights to life, liberty, and property by continuing to promote the fossil fuel industry, would get the world’s attention, and the U.S. Executive Branch, as a result, would almost certainly alter its behavior in some manner so as to at least slow or reduce the injuries that the plaintiffs are suffering on account of global warming, which is all that is required for plaintiffs to possess standing to obtain a declaratory judgment. Furthermore, as discussed in the article, such a declaratory judgment would at least be implicitly accompanied by a “mirror image” injunction ordering the defendants to “stop violating the Plaintiffs’ Fifth Amendment rights in this manner.” In our democracy, there is an expectation that government officials will comply with a declaratory judgment.

Furthermore, I argue that the Ninth Circuit’s holding that the plaintiffs do not even possess standing to obtain such a declaratory judgment is incorrect, because it is inconsistent with longstanding general principles of law, the founding fathers’ intent, the U.S. Supreme Court’s most recent cases on standing and declaratory judgments, and numerous U.S. Supreme Court and lower federal court cases in which the court issued a declaratory judgment clarifying a minor’s U.S. constitutional rights. These latter cases include, for example, Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954) (Fourteenth Amendment rights), Mahanoy Area School District v. B.L. by and through Levy, 141 S. Ct. 2038 (2021) (First Amendment rights), and Miller v. Alabama, 567 U.S. 460 (2012) (Eighth Amendment rights).

In essence, Lest We Be Lemmings argues that, if the U.S. Executive Branch is actively promoting the fossil fuel industry and thereby subjecting the American people to global warming and a federal court cannot even declare that the U.S. Executive Branch’s actions violate people’s Fifth Amendment rights, Americans essentially are just lemmings waiting to fall off the proverbial cliff.

First Page

27

Last Page

107

Publication Date

2024

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