• The Closing Argument

    For the Provocations series, in conjunction with UCI’s “Fire & Ice: The Shifting Narrative of Climate Change” conference.

    “Your honor, the government would have you believe that it has not violated the rights of these young people or the future generations they represent. The government would have you believe that it has not forsaken its duty to safeguard the common natural resources that support our ability to live and continue together as a society.

    Your honor, as you have heard over these past few weeks of trial, the government is wrong. It has failed us and it has failed our children. It has knowingly charted a course for our world that ends with green skies, red oceans, and little life.

    Your honor, you can change that course today and save us from unimaginable hell. A most precious feature of our constitutional framework is that the government is accountable to us, to these children, to you. Ours is a nation of laws and no law permits the collective suicide the government plans for us.”

    This imagined closing argument of plaintiffs in the case of Juliana v. United States may never be heard. Currently pending before the Ninth Circuit Court of Appeals is an attempt by the United States government to dismiss the case before trial, well before closing statements are made. The Juliana suit was brought by youth plaintiffs on behalf of themselves and future generations. Their claim is that the government’s actions over the past four decades have substantially contributed to climate change and violated their constitutional due process rights, in addition to failing the government’s responsibility to protect vital public trust resources, such as the stability of the atmosphere and the ecological health of the oceans.

    Federal district judge Ann Aiken accepted the youth plaintiffs’ theory of the case — that is, she agreed that the government has legal obligations not to knowingly destroy fundamental support systems for life — and slated the case for trial last year to determine whether those obligations have been breached. The government then launched an unprecedented barrage of emergency motions before Judge Aiken, the Ninth Circuit, and the Supreme Court. It soon became clear that the Trump Administration and its lawyers would stop at nothing to avoid trial.

    Little wonder the government’s lawyers are scared. The plaintiffs’ witnesses are prepared to offer a tale of government malfeasance with immeasurably vast and destructive consequences. The 147-page expert report submitted at the trial court level by Gus Speth, the principal environmental advisor to President Jimmy Carter, demonstrates that the federal government has known and acknowledged the existential dangers posed by climate change since at least 1965. Legendary climate scientist James Hansen is prepared to testify that the youth plaintiffs and the future generations they speak for will suffer inconceivable harm in the decades to come — harm that the government knew could have been avoided but instead chose to enable.

    These Hail Mary moves eventually bore fruit, as Judge Aiken bowed in December of last year to considerable pressure exerted by the Supreme Court to certify the case for immediate appeal to the Ninth Circuit, even though a trial has not yet taken place. Later this spring, the Ninth Circuit will hear arguments from both sides regarding whether the government has legal obligations to cease taking actions that contribute to our collective demise. It will do so without benefit of testimony from some of the most knowledgeable individuals in the world regarding climate change and the U.S. government’s role in causing it. In the government’s view, such testimony is unnecessary because the plaintiffs’ claims raise political questions that simply cannot be addressed by the judicial branch.

    The courts — particularly the Supreme Court if an appeal from the Ninth Circuit is granted — will be tempted to agree, ever fearful of their legitimacy. On the other hand, if the government’s view is accepted, it may become the argument to end all argument. The Closing Argument.

    We are talking, after all, about a government’s responsibility to maintain the basic conditions necessary for social order to exist at all. In the American legal tradition we are fond of saying that the Constitution is not a suicide pact. Usually, this phrase is invoked to justify suspending a constitutional limitation on government action when necessary to preserve the state and its people against a massive threat. The Juliana litigation offers an opportunity to do the inverse — to recognize a constitutional right to stop one’s own government from creating and supporting a massive threat to our very survival. If our Constitution does not include this right — which, to be fair, was not explicitly enumerated when the document was drafted, a time when the world contained less than one billion people and the Industrial Revolution had hardly begun — then we may have to reconsider whether it is a suicide pact after all.

    For its part, the Supreme Court appears reluctant to confront the grand questions of law posed by the children’s suit. Chief Justice Roberts is a master tactician and he is well aware that the Court — particularly at this turbulent moment in its history — would not benefit from headlines that read, “US Supreme Court shuts down historic kids’ climate lawsuit.” But Roberts likely also recognizes the grave challenge posed by the merits of the children’s suit. If he and his fellow conservatives on the Court are forced to confront the core argument of the case, they will have to decide whether the government is constitutionally permitted to follow a course of conduct that knowingly destroys the stability of the climate, the very context in which human civilization arose. In other words, the conservative majority will have to decide whether the Constitution is a suicide pact, at least when it comes to climate change.

    The surest way for Roberts to save the courts is not to duck this question, tempting though it will be. It is instead to declare that reason, evidence, and principle — which uniformly point to the need for government accountability in the era of climate change — still underwrite the legitimacy of the judicial branch.

    The question is not how to preserve the courts, but for how long.



    Douglas A. Kysar is Deputy Dean and Joseph M. Field ’55 Professor of Law at Yale University.