We Can’t Sue Our Way to a Stable Climate

In just the past month, US District Courts have dismissed two high-profile climate lawsuits filed against the federal government by Our Children’s Trust (OCT), a non-profit climate advocacy group that “provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate.”

The first and most prominent of all climate lawsuits, Juliana vs. United States, alleged on constitutional grounds that federal policy has violated children’s “right to a stable climate.” The second case, Genesis B. vs. Environmental Protection Agency, charged that the EPA in particular perpetrates discriminatory harm against children by not preventing the emissions of greenhouse gas emissions.

In each case, the ruling judge wrote that the plaintiffs’ purported harms could not be fixed by the judicial system.

The response to these dismissals has been somewhat muted. Neither the Times, Post, or Journal covered the judges’ decisions, nor did the most popular climate newsletters (Drilled, Heated, and Volts). Bill McKibben, who once described Juliana as “the most important lawsuit on the planet,” perfunctorily remarked this month that the lawsuit “may have run its course.” The nonchalance of these reactions may be because few observers expected the suits to succeed. Or it may be because OCT is still pursuing avenues to appeal or amend on behalf of their youth plaintiffs. But given the scope of the lawsuits themselves, and the environmental movement’s robust support for them, it’s worth understanding what they demanded and why they failed.

OCT’s legal strategy reflects a frustration with conventional climate law, which relies on the federal government's authority to regulate greenhouse gas emissions under the Clean Air Act. OCT claims that, instead of drafting narrow Clean Air Act regulations, it’s the federal government’s duty to enforce much more strict and sweeping bans on fossil fuel emissions. And it’s an understandable frustration, since the EPA under four presidents over 17 years has failed to actually implement any such regulations.

The problem with OCT’s suits is that they’re insane.

In both Juliana and Genesis B, the activist litigators argue that their (mistaken) understanding of climate science justifies an immediate government ban on fossil fuel use and a brute-force takeover of the American energy system. Throughout multiple dismissals, the courts rightfully rejected this argument, and the notion that the judiciary should “step into [the] shoes” of the legislature and the executive, as OCT’s lawyers insisted. Unfortunately, this blatantly anti-democratic legal agenda has already spawned hundreds of other questionable lawsuits, and attracted the support of the bulk of the environmental movement.

That movement is large, extremely well funded, not known for its strategic activist restraint, and ideologically sincere in its view that climate change permits a supra-democratic takeover of the institutions of government and control over the industrial economy. The question, then, is not why such a movement would file these lawsuits in a transparently doomed effort to override all existing energy policy and take control of the US energy system. The question is what the future holds for climate law given the obvious disinterest in coherent science or legal principle by the environmental legal community, combined with the courts’ obvious hesitation to write sweeping climate liability into American jurisprudence.

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In 2015, 21 American children, represented by Our Children's Trust, sued the federal government on Constitutional grounds. That suit, Juliana vs United States, claims that under Article III, all Americans, and especially young ones, possess a Constitutional right to a stable climate.

Juliana claims that “today’s best science confirms that 350 ppm is the maximum safe level of atmospheric CO2 required to restore a stable climate system.” Discerning readers will know that atmospheric concentrations of CO2 exceeded 420 ppm last year and that humans have not lived on a 350 ppm planet since the 1980s. As such, the plaintiffs claim that Americans have been unconstitutionally subject to an unstable climate for the better part of four decades.

So it’s worth briefly recalling that the 350 ppm target is not based on any consensus science, nor is it based on pre-modern atmospheric carbon concentrations. Rather, it is a convenient round-number midway point between pre-industrial concentrations (roughly 280 ppm) and the more widely used stabilization target of 450 ppm, identified somewhat arbitrarily by Bill McKibben and James Hansen as a branding totem for climate activists.

Indeed, neither 350 ppm, nor 450 ppm, nor 1.5 degrees C, nor 2 degrees C, nor any other climate targets are “maximum safe levels” beyond which a stable climate is impossible. Climate change is a hazard of degrees, not thresholds. To the extent that these ever-shifting thresholds matter at all, they do so as an artifact of computer climate models, toothless international negotiations, and activist misinterpretation.

Regardless, the plaintiffs have spelled out how to remedy this alleged atmospheric violation. And in contrast to most demands for sweeping executive climate action, which lean heavily on moral clarity and light on practical specifics, the suit is lucidly clear on its implications. “Declaring the United States national energy system to be unconstitutional,” the suit reads (emphasis added), “would resolve the controversy between the parties, thereby redressing a substantial cause of Youth Plaintiffs’ constitutional injuries.”

Yes, the legal activists are claiming that, global concentrations of carbon having exceeded their arbitrary atmospheric target, the entire assemblage of American energy production, storage, transportation, refining, and consumption are in violation of Constitutional law.

Notably, this claim far exceeds the typical demands of climate activists, which include things like vague climate emergency declarations or more prosaic bans on symbolically powerful fossil fuel projects. Indeed, the lawsuit explicitly calls for an end to all “government policies, practices, and aggregate actions, such as permits, licenses, leases, subsidies, standards, and authorizations for the extraction, development, processing, combustion, and transportation of fossil fuel.” Such a declaration would presumably vacate the legality of even regulations on fossil fuels, which would qualify as “standards” for their usage.

And what public institutions would supervise this new energy policy regime? Not Congress or the Executive which, remember, have allegedly presided over the nation’s unconstitutional energy policy. Instead, the activists expect the Courts to enforce a rapid retirement of all fossil energy infrastructure. As the New York Times’ coverage described Juliana, “it is a case that could test whether the judicial branch has [sic] major role to play in dealing with global warming.” And as UC Berkeley’s Dan Farber described what a victory for the plaintiffs would look like, “that could require constant supervision of government actions to ensure they were properly conducted and on schedule.”

Then, in December of 2023, Our Children’s Trust filed another suit against the Environmental Protection Agency for “[allowing] life-threatening climate pollution to be emitted by the fossil fuel sources of greenhouse gases it regulates.” The case assumes an authority to the EPA that has not been endowed previously, namely that the Agency is obligated to somehow prevent greenhouse gas emissions, not merely regulate them.

Notably, the precedent enabling the EPA’s regulation of greenhouse gases in the first place, Massachusetts vs. EPA, occurred over seventeen years ago, and since then, the EPA under both the Obama and Biden Administrations has tried and failed to craft effective climate rules for the electric power and transportation sectors. These failures largely owe to US courts’ skepticism of the technical feasibility and legal jurisdiction of the proposed rules. Indeed, in 2022, the Supreme Court struck down the vestigial Obama rule, known as the Clean Power Plan, on the basis that the EPA does not have the authority to regulate emissions from the electric power sector as a “system,” but only emissions from individual facilities. One struggles to see how an EPA that has spent years attempting to attach even mild regulations on emissions can be expected to unilaterally outlaw all fossil fuel production outright. Yet that is what Genesis demands.

In other words, these lawsuits, on their own terms, are an attempt by the plaintiffs to use the sympathetic voices of children in an attempted end-run around democratically accountable institutions to enforce ideologically constructed ecological constraints on the American economy.

After this month’s dismissals, the fate of both Juliana and Genesis remains uncertain at best. But Our Children’s Trust has also filed state-level suits against the fossil fuel industry itself in Hawaii, Montana, Florida, Utah, and Virginia. These suits take strategic advantage of local laws and regulations, for instance, the Montana’s Constitutional’s “right to a clean and healthful environment.” It’s likely due to this provision that a Montana state court found in favor of the plaintiffs last November. But it is widely understood that what happened in Montana will stay in Montana. “Both sides of the climate liability litigation believe local governments are more likely to win monetary awards in state court,” reported Lesley Clark last year.

At this point, OCT’s suits are just the tip of the iceberg. According to Columbia’s Sabin Center for Climate Change Law, there are over 1200 climate lawsuits in the US, filed by state attorneys general, cities and municipalities, and private citizens. What ultimately transpires with the most prominent of these cases—namely, Juliana and Genesis B.—will reverberate throughout these hundreds of suits.

And these young activists and their lawyers are not on their own. Our Children’s Trust is funded by the Rockefeller Foundation, Patagonia, and other major environmental donors and philanthropies. Juliana includes supportive amicus briefs authored by the Sierra Club, the Sunrise Movement, Food & Water Watch, Greenpeace, Friends of the Earth, Defenders of Wildlife, the Union of Concerned Scientists, and Zero Hour, among many others. Over 250 climate organizations signed a petition in support of the plaintiff’s efforts to commandeer US energy policy.

It is, for all intents and purposes, the official position of the environmental movement that US energy policy, and the US energy system itself, are unconstitutional.

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Bombastic rhetoric aside, the lawyers at OCT surely understand that their federal cases have approximately zero chance of prevailing if they somehow make it to the current Supreme Court. Meanwhile, the caretakers of the state-level lawsuits are doing everything they can to keep their cases out of federal court. And given the judicial stakes of Juliana and Genesis, one might have expected more outrage at this month’s dismissals. What, then, are Our Children’s Trust—and the hundreds of environmental organizations and elected officials supporting them—up to?

The obvious answer: PR. As journalist Dana Drugmand argued at Drilled Media before Juliana was dismissed, “the trial could potentially still bring about accountability through the court of public opinion.” UC Berkeley’s Farber, a skeptic of the litigation, nevertheless wrote that the lawsuit “succeeded brilliantly as an exercise in public mobilization.”

Your mileage may vary on what qualifies as successful public mobilization for an issue that still ranks very low on voters’ lists of public policy priorities. Regardless, the more likely outcome of all this litigation, if it continues, is legal backfire.

Given that the Obama, Trump, and Biden Departments of Justice have all made motions for the courts to dismiss Juliana, there is little apparent appetite, even among liberal administrations, to conduct the judicial oversight of the American energy system demanded by the suit. And if OCTamends either federal suit sufficiently that they make it to the Supreme Court, they might regret doing so. “Suits like Juliana,” writes legal scholar Jonathan Adler, “...offer the justices good cause to step in to make sure climate litigation does not get out of hand.” The presence of the other state-level cases may, in the long term, increase the pressure on the Court to rule on the subject of climate liability.

In other words, if they find a way past the District Court level, the activists’ decade-long effort to secure a constitutional right to a stable climate may result in precisely the opposite: a finding by the Supreme Court, uncontested by the Justice Department, that such a right definitively does not exist. And that’s not all that the Court could do. “Worst of all,” pondered Carolyn Kormann in the New Yorker, “it might lead them to revisit Massachusetts v. E.P.A.”

Supporters of the raft of climate lawsuits counter that final legal victory is not the only barometer of success, expressing hope that the document discovery portion of the state-level cases will “not only shape public discourse but also act as a catalyst for transformative legal actions,” as L. Delta Merner at the Union of Concerned Scientists put it. But there is little reason to expect much genuine public discourse, let alone transformative change, from unveiled fossil industry documents.

Any unveiling would be the nth such exposé of Big Fossil’s purported conspiratorial and secretive knowledge of climate change. Since the launch of the Exxon Knew campaign in 2015, uncovering and publicizing internal oil and gas industry documents pertaining to knowledge of climate science has become an extracurricular hobby across much of environmental academia and advocacy. Surely a full decade of such historiographical escapades would have mobilized the public by now.

But they haven’t, for the obvious reason that there’s just not much there there. As the OCT lawsuits themselves emphasize, the federal government and broader public have been aware of the threat of climate change “since at least the White House’s 1965 Report of The Environmental Pollution Panel President’s Science Advisory Committee.” Since then, fossil industry scientists collaborated for decades with government and academic scientists on public studies of the existence and impacts of climate change. Any “uncovered” industry documents are not the smoking gun revealing a fossil industry conspiracy, but merely the internal record of a public and broadly shared understanding of climate change.

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One way to explain the Kids Climate Lawsuits is the story of activist adults using real children’s voices as sympathetic sock-puppets for an extremist campaign. Another is that the logic of the lawsuits themselves is the logic of a child—morally black-and-white and untroubled by the nuances and frictions of the real world.

The most cynical explanation would invoke the Shirkey Principle, the notion that “institutions will try to preserve the problem to which they are the solution.” If environmentalists’ goal were to keep legal climate liability an unresolved issue in perpetuity, and to obstruct any regulatory measure short of wholesale fossil energy abolition, then there could be no better strategy than to dare the Supreme Court to vacate any legal liability and to eliminate the federal government’s obligation to regulate greenhouse gas emissions at all.

But the most likely explanation is simply environmental lawyers’ passionately sincere ecological catastrophism, which unfortunately for them is incompatible with a staid and highly convoluted American legal system, not to mention out of step with the consensus on physical climate risk.

The activist litigators in Juliana and Genesis B. have consistently exaggerated the physical threat to their clients, misrepresenting the science of anthropogenic climate change in an effort to persuade the judiciary to commandeer and systematically shut down the American energy economy. Their strategy is not entirely hopeless—it worked on at least one judge, whose series of perplexing decisions is arguably the main reason Juliana remained open until this month. But this is obviously a fool’s errand in the end game—the courts have consistently found that climate risk must be weighed against economic cost and technical feasibility of emissions reduction, subject to tests of jurisdictional and legal standing, and otherwise not used as a trump card for whatever harms and damages activist lawyers can dream up.

But even if the courts were more sympathetic to the activists’ understanding of climate risk, the American legal system remains poorly set up to address climate change at all. And that’s because, these fantastical lawsuits notwithstanding, environmentalist legal professionals have largely made the case for regulatory climate action under the auspices of the Clean Air Act, a landmark piece of environmental legislation that is simply ill suited to addressing greenhouse gas emissions.

That’s not entirely the environmentalists’ fault. The Court did, after all, rule in Massachusetts vs EPA that carbon dioxide and other greenhouse gases qualify as air pollutants under the Clean Air Act, a proposition that had gone contested until that point. And while, as a result, the federal government is legally obligated to regulate carbon emissions through the instrument of the Clean Air Act, major practical issues prevent the law from ever being of much use for climate action.

The Clean Air Act was written over 50 years ago to regulate criteria pollutants including particulate matter, ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide and lead. These pollutants are generally not otherwise present in dangerous concentrations in nature without being put there by humans. Greenhouse gases, on the other hand, are abundant in the Earth’s biosphere and literally make life on Earth possible. Nor are greenhouse gas emissions immediately toxic to humans or wildlife at any normal concentrations in the way that the other criteria pollutants are. Greenhouse gases are invisible, odorless compounds that human and animal life produce in the course of regular metabolism and respiration. Regulating them as we would lead in paint or ozone in local airways is simply not technically feasible, no matter how many baroque regulatory frameworks the valiant technocrats at the EPA can create.

In a way, OTC and the modern army of climate litigators understand these limitations. But their response is a demonstration of institutional nihilism, not legal problem-solving. They’re attempting to overcome the weaknesses of the American regulatory state through brute force, ignoring Constitutional, practical, and policy barriers to climate regulation and insisting that the risks of climate change merit throwing out our entire industrial, legal, and regulatory regimes.

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“It is necessary that the ship of state be not only kept afloat, but that it should be steered, surely and deliberately, toward a desired destination.”

So wrote The Club of Rome’s Alexander King and Bertrand Schneider in their 1991 book The First Global Revolution, which argued for radical shifts in human society to avert environmental catastrophe.

Environmental scholars and activists make this argument constantly—that they and their friends take the helm and “steer the ship of state” to keep society contained within various au courant ecological constraints, from population control to “The Limits to Growth” to the “Ecological Footprint” to “Planetary Boundaries” to the 2-degree and 1.5-degree climate thresholds. As Will Steffen, an architect of the “Planetary Boundaries” hypothesis, put it, “Ultimately, there will need to be an institution (or institutions) operating, with authority, above the level of individual countries to ensure that the planetary boundaries are respected.”

It may be tempting to dismiss these notions as the overindulgent fantasies of overexcited academic scientists. But it would be a lot easier if the bulk of the American environmental movement weren’t currently working to have the US energy system declared unconstitutional—to steer the ship, so to speak, of all American energy policy.

To some extent, this is all sound and fury, signifying no climate action whatsoever. Decarbonization will occur not under judicial fiat, but rather through the grinding and messy processes of socio-technological transitions, as more and better zero-carbon technologies are developed, made cheaper, and disseminated throughout the nation’s and the world’s industrial systems.

But to the extent direct government controls on emissions do matter, the climate deserves better lawyers.

A different approach, succeeding where both the Clean Air Act and catastrophist litigation will necessarily fail, would not conflate the risks posed by conventional criteria pollutants and greenhouse gas emissions. It would excise any mention of global atmospheric climate targets, which, even were they mainly influenced by US emissions, are inherently arbitrary. It would (as the Biden Administration attempts in its recently proposed power plant and tailpipe rules, to its credit) rigorously weigh the feasibility of displacing coal, oil, and natural gas with zero-carbon technologies and infrastructure. And it would continue to index on policy instruments for which regulatory authority is on more solid ground, recognizing that, to the extent that regulations have resulted in emissions reductions to date, they have done so largely by targeting non-greenhouse co-pollutants, like lead in gasoline or mercury in coal pollution.

Unfortunately, pragmatism like this would not serve the Manichean interests of an environmentalist legal movement that continues to insist on writing arbitrary ecological fatalism into American regulatory law. So for now, the state of climate law sits uncomfortably between the unworkability of Clean Air Act regulations and the nihilism of the climate litigation industrial complex.