Stepping Up Against Climate Change One Case at a Time: Juliana v. United States

David Hunter

AUWCL Professor David Hunter is famous for his involvement in groundbreaking litigation favoring environmental concerns. After his support of the JAM v. IFC case before the U.S. Supreme Court, he has most recently co-authored an amicus curiae brief in a petition for rehearing en banc the case of Kelsey Cascadia Rose Juliana, et al. v. United States of America (“Juliana v. United States”) at the U.S. Court of Appeals for the Ninth Circuit. The case demands from the U.S. federal government at least the development of a public policy against the rapid increase of climate change.

The case originated when 21 children and adolescents filed suit alleging that the U.S. government failed to enact climate change policies that are necessary to protect their constitutional rights to life, liberty, and property, as well as public trust resources. The complaint was based on the alleged fact that the federal government had known for a long time the adverse effects of climate change, but continued to “permit, authorize, and subsidize fossil fuel extraction, development, consumption and exportation.”

A District Court Judge recognized the due process violation in a historic judgment. The federal government appealed and obtained a Ninth Circuit Court decision from a split panel rejecting the idea that the claim was justiciable. Claimants petitioned for an en banc hearing, which was granted on December 26, 2018.

While the case was still awaiting the en banc hearing, on March 12, 2020, Professor David Hunter submitted an amicus curiae brief co-authored with San Francisco-based attorney Dave Inder Comar. In the brief, Professor Hunter offered an overview of how other jurisdictions around the world already recognize that their courts can review national energy and climate change policies; there is redress for those claims (primarily through ordering their governments to put in place appropriate climate change policies); and the judicial review of climate change policies can be based on objective, scientific data. The amicus brief also argues that not only foreign jurisdictions may arrive at these conclusions, but also the U.S. courts have the power to save lives, provide due process, and protect property by mandating the government to take concrete steps to mitigate and contain the climate crisis.

The amicus brief relies on cases from the Netherlands, New Zealand, Colombia, Germany, India, Ireland, Pakistan, the United Kingdom, and the Philippines. The brief takes particular account of the Netherlands’ case of The State of the Netherlands v. Urgenda Foundation, decided by the Supreme Court with a judgment on December 20, 2019. This judgment has become a leading case for the worldwide effort of climate change litigation, as it concluded that “[i]t is up to the courts to decide whether, in availing themselves of this discretion [to set climate policy] the government and parliament have remained within the limits of the law to which they are bound.”

This is the second amicus brief Professor Hunter has filed in Juliana; he and Professor Snape previously co-authored a brief in the initial Ninth Circuit opinion.  That brief, too, sought to inform the Court about relevant developments in international and comparative law.  Professors Hunter and Snape hope that these briefs will persuade the Court that judicial engagement on this global climate crisis is supported by courts around the world. Some of Professor Hunter's clients also include the Center for International Environmental Law (CIEL), The Environmental Law Alliance Worldwide (ELAW), Amnesty International, the NYU clinic and several cohorts of international lawyers dedicated to environmental law.