DOI: 10.1111/reel.

12248

CASE NOTE

Juliana v United States: The next frontier in US climate

mitigation?

Melissa Powers

Correspondence
Email: powers@lclark.edu
In the ground-breaking lawsuit, Juliana v United States, more than 20 children and
young adults are suing agencies of the United States for contributing to climate
change by promoting, supporting and permitting fossil fuel extraction, transportation
and use. The case reached an important threshold in November 2016 when, one
day after a minority of voters elected Donald Trump President, a district court ruled
that the case could move forward. Specifically, the district court ruled that the plain-
tiffs had raised viable legal claims when they alleged the US government had vio-
lated plaintiffs’ fundamental constitutional rights to a liveable planet and that the
government had failed to adequately protect public trust resources from harm
caused by climate change. This preliminary ruling has paved the way for a trial in
which plaintiffs will be able to present scientific and factual evidence regarding cli-
mate change and the government’s actions supporting activities that contribute to
climate change. If the plaintiffs ultimately succeed in the case, the Juliana litigation
could ultimately serve as a tool to compel the US government to develop a strategy
for decarbonizing the US energy system and economy.

1 | INTRODUCTION
As the second year of the Trump Administration proceeds, it’s deja
vu all over again when it comes to climate litigation in the United
States. During the years of the George W. Bush Presidency, faced
with a federal government that was actively working to undermine
international climate treaties and avoid federal regulation, climate
activists turned to the common law to try to force large greenhouse
gas emitters and recalcitrant regulators to address climate change
1
and reduce emissions. Under the Obama Administration, the focus
on common law remedies diminished, both because courts fre-
quently dismissed common law suits and because the Obama Admin-
istration pursued an array of strategies to regulate greenhouse gases
2 (Finnish Institute of International Affairs 2018) 11–15.
and address climate change. Since taking office in January 2017,
the Trump Administration has worked steadily to undermine US
1
RH Weaver and DA Kysar, ‘Courting Disaster: Climate Change and the Adjudication of
Catastrophe’ (2017) 93 Notre Dame Law Review 295, 322, fn 183.
2
M Dellinger, ‘See You in Court: Around the World in Eight Climate Change Lawsuits’
(2018) 42 William & Mary Law and Policy Review 525, 532–533.
efforts to address climate change.3 Over objections from his own
Secretary of State, Donald Trump asserted that he would withdraw
the United States from the Paris Agreement and withhold funding to
aid other countries to mitigate and adapt to climate change.4 Offi-
cials in the Trump Administration have launched a sustained assault
on US laws and policies aimed at addressing climate change and
transitioning away from fossil fuels.5 Although the Trump Adminis-
tration has faced fierce resistance from environmental organizations,
state and local governments, and even some employees within fed-
eral agencies,6 it appears likely that national climate change
3
See M Mehling and A Vihma, ‘Mourning’ for America: Donald Trump’s Climate Change Policy
4
ibid 10; see also The White House, ‘President Trump Announces U.S. Withdrawal from the
Paris Climate Accord’ (1 June 2017) <https://www.whitehouse.gov/blog/2017/06/01/presi
dent-donald-j-trump-announces-us-withdrawal-paris-climate-accord>.
5
Mehling and Vihma (n 3) 11–15; CJ Miller, ‘For a Lump of Coal & a Drop of Oil: An Envir-
onmentalist’s Critique of the Trump Administration’s First Year of Energy Policies’ (2018)
36 Virginia Environmental Law Journal 185.
6
See J Achenbach, B Guarino and S Kaplan, ‘Why People are Marching for Science: “There
is No Planet B”’ (Washington Post, 22 April 2017).

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2 |
advocacy during the Trump Administration will necessarily focus on
defending Obama-era rules and policies from rollbacks and repeals.
Progressive policymaking will occur, if at all, at the state and local
level, but only in those places where local politics support climate
action.7 As a consequence, many polluting sources and industries will
remain exempt from obligations to reduce their greenhouse gas emis-
sions. Facing this reality and recognizing the limits of piecemeal local
and state climate mitigation efforts, climate activists and progressive
local governments have begun to head back to the courts to try to
hold large emitters accountable for their historic and ongoing contri-
butions to climate change.8 For many of these advocates, the district
9
court’s ruling in Juliana v United States, a case seeking to use the US
Constitution and public trust doctrine to ensure climate protections,
serves as an important beacon of hope. Whether Juliana will ultimately
provide effective remedies, however, remains to be seen.
In November 2016, two days after a minority of Americans elected
Donald Trump President, a US federal district court ruled that plaintiffs
in Juliana v United States could take their case to trial.10 The plaintiffs in
the case, who include children and young adults ranging from 10 to 22
years old, have asked the court to rule that the federal government has
violated the plaintiffs’ fundamental right ‘to a climate system capable of
sustaining human life’.11 This right, the plaintiffs allege, arises under the
Due Process Clause of the US Constitution, which states that no person
shall, due to the federal government’s interference, ‘be deprived of life,
12
liberty, or property, without due process’. The plaintiffs have further
alleged that the federal government has violated its duty to protect
trust resources13 from the consequences of climate change. In
response to the government’s motion to dismiss the case, the district
court ruled in favour of the plaintiffs, finding the plaintiffs had valid
legal claims.14 The court also accepted jurisdiction over the case, reject-
ing the government’s arguments that the plaintiffs lacked constitutional
standing to sue and that the case involved non-justiciable political
15
questions. The court’s decision should have paved the way for the
case to move forward to the trial phase of the litigation.
However, the case first took a detour to the Ninth Circuit Court
of Appeals, after the federal government asked that court to inter-
vene prematurely in the case by issuing a writ of mandamus – a legal
writ that would usurp the typical appellate processes and allow the
Ninth Circuit to quash the case.16 Normally, federal civil procedure
rules prohibit interlocutory appellate review of district court deci-
sions, unless a district court judge certifies the case is appropriate
7
See HM Ofsofsky and J Peel, ‘Energy Partisanship’ (2016) 65 Emory Law Journal 695,
750–758.
8
Weaver and Kysar (n 1) 322, fn 182 (listing new climate-related lawsuits).
9
Juliana v United States, 217 F Supp 3d 1224 (D. Or. 2016) (Juliana).
10
ibid.
11
ibid 1250.
12
US Const. amend. V.
13
As discussed in Section 2.1, the public trust doctrine obligates sovereign governments to
protect and manage for the public resources that are considered part of the public trust.
These resources include territorial seas and submerged lands. The plaintiffs allege they also
include the atmosphere.
14
Juliana (n 9) 1260–1262.
15
ibid 1235–1246.
16
Weaver and Kysar (n 1) 347–349.
CASE NOTE
for review and the appellate court agrees.17 In the case of Juliana,
the district court denied the government’s request for interlocutory
appeal.18 The government nonetheless sought the Ninth Circuit’s
intervention through a writ of mandamus. On 7 March 2018, the
Ninth Circuit denied the request for the writ of mandamus.19 As this
case note went to print, the case was back before the district court
and trial was scheduled to begin in late October 2018.20
The government’s request for a writ of mandamus is just one of
several recent twists in the Juliana case that highlight the importance
of the case to climate justice. Although the US government admitted
in its filings in Juliana that climate change presents undue risks to
human health and the environment, and although government scien-
tists have stated on the record that they consider the US approach
to climate change mitigation inadequate, the government has sought
to shield itself from any legally enforceable requirements to address
climate change. Both the Obama Administration and the Trump
Administration asked the court to dismiss the case, arguing that cli-
mate policy is an inherently political issue unfit for court involve-
ment. Major fossil fuel producers and users likewise sought to
prevent judicial review. Now that a federal court has accepted juris-
diction, it could be the first time in the United States that climate
science is directly adjudicated before a federal court.21 While climate
science has been an issue in other lawsuits, most of these involve
claims brought pursuant to administrative laws, in which courts give
agencies’ scientific findings strong deference.22 Application of this
deference typically means that courts will uphold agencies’ decisions
and interpretations of the science, even if a judge may not person-
ally agree with the agencies’ conclusions.23 Juliana, in contrast, does
not involve the same type of administrative review and deference.
This could mean that climate scientists will finally be able to prove
that climate science is legitimate and that the weight of the evidence
shows that climate change is real and presents significant risks. The
case could also help demonstrate culpability by the federal govern-
ment and major fossil fuel producers and users, thereby paving a
way for an effective climate policy in the United States. For these
outcomes to occur, however, the plaintiffs will need to prove several
ambitious claims. Section 2 of this case note will explore the claims
at issue in Juliana and how the district court ruled in response to the
federal government’s motion to dismiss. Section 3 will then discuss
the next steps in the litigation and will briefly conclude by explaining
how a favourable ruling in Juliana could affect US climate policy.24
17
ibid 348, fn 373.
18
Order Denying Certification for Interlocutory Appeal, Juliana v United States, No 6:15-cv-
01517 (D. Or. 8 June 2017).
19
In re United States, 884 F.3d 830 (9th Cir. 2018).
20
K Savage, ‘Youth Climate Case vs. US Government Will Head to Trial in October’ (Climate
Liability News, 12 April 2018).
21
Weaver and Kysar (n 1) 323: ‘Whether through deference, displacement, or deliberate
sabotage, anxious courts have found ways to ignore the climate change plaintiff.’
22
National Association of Clean Air Agencies v Environmental Protection Agency, 489 F.3d
1221, 1229 (D.C. Cir. 2007).
23
ibid.
24
For a detailed description of the claims in Juliana and its implications for the atmospheric
trust litigation, see MC Blumm and MC Wood, ‘“No Ordinary Lawsuit”: Climate Change,
Due Process, and the Public Trust Doctrine’ (2017) 67 American University Law Review 1.
CASE NOTE
2 | AN OVERVIEW OF THE CLAIMS AND
LEGAL ISSUES IN JULIANA
In Juliana, 21 children and young adults have sued the United States
for violating their constitutional rights by promoting and supporting
the development of fossil fuels, despite the government’s awareness
that fossil fuel production and consumption are major causes of cli-
mate change and despite the government’s recognition of the pro-
found risks climate change presents to the planet and its inhabitants.
The Juliana plaintiffs allege that the US government has supported
fossil fuel development through federal permits, leases, subsidies,
approvals for fossil fuel exports and other actions, even though the
government has known for more than 50 years of the risks of cli-
25
mate change to present and future generations. The plaintiffs fur-
ther allege that, through this ongoing support for fossil fuels, the
government has ‘acted with deliberate indifference to the peril’ it
has created.26 The plaintiffs have asked the district court to order
the government to remedy the harm it has caused by directing the
government to ‘prepare and implement an enforceable national
remedial plan’ to stabilize the climate system.27 The remedial plan
would involve decarbonization by phasing out fossil fuel emissions
and a ‘draw-down project to naturally extract existing excess atmos-
pheric [carbon dioxide]’.28 Thus, if they succeed, the Juliana plaintiffs
would compel the US government to create a comprehensive strat-
egy for eliminating fossil fuel use and mitigating climate change.
To prevail, the plaintiffs will need to demonstrate that the court has
jurisdiction and prove their claims. Specifically, the plaintiffs will need to
show that they have standing to sue, that climate change is not a non-
justiciable political question, and that the plaintiffs’ constitutional and
public trust claims have merit. The plaintiffs have surmounted the first
hurdle in the process and should now be allowed to take their case to
trial. Understanding the significance of this case requires a deeper
exploration into the district court’s ruling and the plaintiffs’ claims.
2.1 | The legal claims
The Juliana plaintiffs have asserted that the federal government’s
promotion of and support for fossil fuel development violate their
constitutional rights and the government’s public trust obligations.29
The constitutional claims arise under the Constitution’s Due Process
Clause, Equal Protection Clause and the Ninth Amendment. How-
ever, the district court assessed only the Due Process arguments.
The court also addressed plaintiffs’ claims alleging that the federal
government has an obligation, as a trustee, to protect public trust
resources from despoliation. In both cases, the district court agreed
with the plaintiffs that they had raised valid legal claims. As a result
of this ruling, and the Ninth Circuit's refusal to issue a writ of
25
First Amended Complaint, Juliana v United States, No 6:15-cv-0517 (D. Or. 10 September
2016) (Juliana Complaint) 3.
26
ibid 5.
27
ibid 95.
28
Blumm and Wood (n 24) 27, citing Juliana Complaint (n 25) 95.
29
Juliana Complaint (n 25) 3–5.
| 3
mandamus, plaintiffs will be entitled to go to trial to present evi-
dence to prove their claims.
The Due Process Clause of the US Constitution states that no
person shall, due to the federal government’s interference, ‘be
deprived of life, liberty, or property, without due process’.30 The
plaintiffs in Juliana have alleged that the US government has violated
their due process rights by allowing or causing greenhouse gas emis-
sions ‘to rise to levels that dangerously interfere with a stable cli-
mate system’, despite the government’s awareness of the risks.31
This behaviour, according to the plaintiffs, has endangered the plain-
tiffs’ health and welfare. The district court held that these injuries
would violate due process only if they affected the plaintiffs’ funda-
mental rights.32 The court therefore assessed whether the plaintiffs’
interests fit within the narrow category of fundamental rights enu-
merated in the Constitution (i.e., life, liberty and property) or recog-
nized by the Supreme Court. As the district court noted, the
Supreme Court has recognized as fundamental the rights to privacy,
procreation and marriage (including same-sex marriage).33 The court
further observed that ‘identification and protection of fundamental
rights is an enduring part of the judicial duty to interpret the Consti-
tution’.34 Having laid the groundwork for recognizing new funda-
mental rights, the district court then held that ‘a climate system
capable of sustaining human life’ is a fundamental right and ‘a stable
climate system is quite literally the foundation “of society, without
which there would be neither civilization nor progress”’.35
Having concluded that the plaintiffs were seeking to protect fun-
damental rights, the district court then examined whether the gov-
ernment could be held accountable for both its actions and inactions
contributing to climate change. Invoking a doctrine called the ‘danger
creation’ exception, the court concluded that the government could
be held liable if the plaintiffs could prove that the federal govern-
ment’s actions and inactions placed the plaintiffs ‘in peril in deliber-
ate indifference to their safety’.36 Specifically, plaintiffs will need to
show that ‘the government knew its acts caused . . . danger’ and ‘the
government with deliberate indifference failed to act to prevent the
alleged harm’.37 While the plaintiffs will need to present ‘rigorous
proof’ to make such a showing,38 the district court’s decision allow-
ing the case to proceed – if it is not set aside by a higher court – will
30
US Const. amend. V. Under the Fourteenth Amendment to the Constitution, states are
also subject to the due process requirements.
31
Juliana (n 9) 1248.
32
As Blumm and Wood explain, government actions that affect fundamental rights are sub-
ject to ‘strict scrutiny’, in which the court will uphold the action only if it is narrowly
tailored to serve a compelling state interest. Blumm and Wood (n 24) 37. Government
actions that affect rights that are not ‘fundamental’ are subject to more deferential review
by the courts. Indeed, the district court noted that the government’s actions related to fos-
sil fuel exploitation would have survived the more lenient rational basis review; ibid. See
also Juliana (n 9) 1249.
33
Juliana (n 9) 1249. Other fundamental rights recognized by the Supreme Court include
the right to vote, the right to travel between the states and the right to fair process in crim-
inal cases. Blumm and Wood (n 24) 39–40.
34
Juliana (n 9) 1250.
35
ibid.
36
ibid 1250–1251.
37
ibid 1252 (emphasis in original).
38
ibid.
4 |
provide plaintiffs the opportunity to demonstrate that the federal
government’s actions supporting, authorizing and promoting fossil
fuel development and use have violated their fundamental rights to
a stable climate system and liveable planet.
The district court also determined that the plaintiffs had raised
valid claims under the public trust doctrine. The court began by
observing that, ‘[i]n its broadest sense, the term “public trust” refers to
the fundamental understanding that no government can legitimately
abdicate its core sovereign powers’.39 Applying this broad concept to
natural resources, the court then noted that public trust obligations
prevent a sovereign from ‘depriving a future legislature of the natural
resources necessary to provide for the well-being and survival of its
citizens’.40 Having framed the public trust doctrine in such terms, it is
not surprising that the court then determined that the plaintiffs had
viable public trust claims.
The district court noted that the public trust doctrine not only
predates the United States, but dates back to Roman times, when
the Institutes of Justinian declared that ‘the air, running water,
the sea, and consequently the seashore’ were by natural law
‘common to all’.41 The court then traced the public trust’s move-
ment to the United States, explaining how several courts had
accepted the public trust doctrine as an inherent aspect of sover-
eignty. This recognition of the viability of the public trust doctrine
thus laid the groundwork for the court to determine that the pub-
lic trust doctrine applies to the federal government and applies to
at least some of the resources – namely, the territorial sea and
submerged lands – that plaintiffs alleged are harmed by climate
change.42 The district court also rejected the federal defendants’
arguments that the public trust doctrine has been displaced by
other federal laws and that public trust claims are not justiciable
43
in a federal court.
The court’s ruling regarding the public trust claims marks the
first time a federal court has recognized that the federal govern-
ment’s trust responsibilities extend to climate-change-related in-
juries. However, the court did not decide whether the atmosphere
itself is part of the public trust. For nearly a decade, environmen-
tal organizations led in the United States by the group Our Chil-
dren’s Trust have sought to operationalize the legal concept
developed by Mary Christina Wood that the atmosphere is part
of the public trust that governments have a duty to protect.44
Under the atmospheric trust doctrine, the air and atmosphere, like
other natural resources, ‘are within the res of the public trust’;
governments are public trustees that must manage the resources
in the trust for present and future generations; as trustees, gov-
ernments have fiduciary duties to prevent waste, including
39
ibid.
40
ibid 1253, quoting Brief of Amicus Curiae Global Catholic Climate Movement and Leader-
ship Council of Women Religious, Juliana v United States, No 6:15-cv-0517 (D. Or. 12
September 2016) 3.
41
Juliana (n 9) 1253, quoting Justinian, Institutes 2.1.1 (JB Moyle translation (Oxford 1913)).
42
Juliana (n 9) 1255–1261.
43
ibid.
44
MC Wood, Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge Univer-
sity Press 2014).
CASE NOTE
‘substantial impairment’ of the trust resources; and courts have a
duty to enforce the trust obligations.45 Although the district court
did not expressly hold that the air and atmosphere are subject to
protection as trust resources, the court did seemingly embrace the
other fundamental precepts of the public trust duty: namely, that
the federal government has a fiduciary duty to manage public
trust resources for present and future generations. At trial, plain-
tiffs will need to demonstrate that the government has in fact
violated this fiduciary duty. If the plaintiffs succeed, as discussed
in Section 3, they could obtain a remedy that could alter the
course of climate policy in the United States.
2.2 | The jurisdictional issues
Although the district court’s ruling regarding the plaintiffs’ legal
claims has the greatest potential to alter climate policy moving
forward, the plaintiffs’ success in getting the court to accept juris-
diction over the case was itself an important achievement in the
case and potentially for climate change law itself. In Juliana, the
federal defendants asked the court to dismiss the case for lack of
jurisdiction. The defendants first argued that climate change is a
non-justiciable political question left to the other US branches of
government to resolve. The defendants also argued that the plain-
tiffs lacked standing to sue. The district court’s rulings in favour
of the plaintiffs regarding these two issues may open the door to
future US climate-related cases.
The political question doctrine deprives federal courts of judi-
cial review over questions that courts believe should be resolved
by the political – i.e., the executive and legislative – branches of
government.46 Although a wide array of issues might seemingly fit
within this category of non-justiciable issues, the Supreme Court
narrowed the categories of ‘political questions’ in Baker v Carr,
which identified six factors courts should consider when consider-
ing their jurisdiction.47 Three of these factors are the most import-
ant. The first factor asks whether resolution of the issue is
‘textually committed’ to a political branch of government.48 The
other two factors involve circumstances where the courts lack
competence to resolve the issue, such as where there do not exist
judicially manageable standards or where judicial resolution
requires the court to make an initial policy decision that should be
made by other branches.49 In prior cases, particularly during the
George W. Bush Administration and before the Obama Administra-
tion enacted several federal climate change regulations, several
courts held that the issue of climate change was simply too politi-
cal for judicial intervention due to its foreign policy implications or
disputes regarding climate science. Courts therefore rejected the
idea that they could employ existing legal standards, such as the
45
Blumm and Wood (n 24) 23.
46
Marbury v Madison, 5 US (1 Cranch) 137, 170 (1803).
47
369 US 186, 217 (1962).
48
Zivotofsky ex rel Zivotofsky v Clinton, 566 US 189 (2012) (Sotomayor, J., concurring); Juli-
ana (n 9) 1237.
49
Juliana (n 9) 1238.
CASE NOTE
elements of public nuisance under tort law, to resolve legal dis-
50
putes regarding climate change. In Juliana, however, the district
court rejected the government’s assertion that climate change is
51
inherently political or outside the they competence. Indeed, the
court observed, ‘[e]very day, federal courts apply the legal stan-
dards governing due process claims to new sets of facts’.52
The district court also rejected the defendants’ arguments, and
the precedence of several other federal courts, that plaintiffs could
not demonstrate they had standing to sue. Under Article III of the
US Constitution, plaintiffs must show they have standing by
demonstrating: (i) they have suffered an injury in fact that is con-
crete and particularized, and actual or imminent; (ii) their injury is
fairly traceable to the defendant’s conduct; and (iii) that a favour-
able decision by the court can remedy the injury, at least in part.53
In many other climate-change-related cases, courts have denied
plaintiffs’ standing on the bases that their injuries are too widely
shared with others, insufficiently imminent or not adequately linked
to the defendants’ specific greenhouse gas emissions.54 In Juliana,
however, the district court held that the plaintiffs had adequately
argued all three elements of standing. The court specifically distin-
guished an appellate court decision in which the Ninth Circuit
Court of Appeals held that plaintiffs concerned about emissions
from oil refineries could not trace the emissions to the specific
harms the plaintiffs would suffer due to loss of snow and increased
risk of drought and fires.55
In distinguishing the case, the court noted, ‘climate science is
constantly evolving’, and a party’s inability to link emissions to
effects at one point in time should not foreclose other plaintiffs from
producing evidence to show their injuries are in fact fairly traceable
to defendants’ emissions.56 On this basis, the court held that the
plaintiffs’ case could move forward.
The standing decision is, however, only preliminary because it
arises on a motion to dismiss, before parties have an obligation to
submit factual proof of their claims. When a defendant files a motion
to dismiss, judges are required to assume that the facts alleged in a
plaintiff’s complaint are true. Thus, at trial, plaintiffs will need to
prove they meet the standing requirements, just as they will need to
prove the government violated its public trust duties and infringed
upon plaintiffs’ due process rights.
3 | NEXT STEPS IN THE LITIGATION
Normally, when a district court denies a motion to dismiss, a lawsuit
would proceed to the next stage of litigation – whether it involves
50
See B Ewing and DA Kysar, ‘Prods and Please: Limited Government in an Era of Unlim-
ited Harm’ (2011) 121 Yale Law Journal 350, 367–369.
51
ibid 1235–1240; Blumm and Wood (n 24) 32–33.
52
Juliana (n 9) 1239.
53
Lujan v Defenders of Wildlife, 504 US 555, 560 (1992).
54
See B Kellman, ‘Standing to Challenge Climate Change Decisions’ (2016) 46 Environmen-
tal Law Reporter News & Analysis 10116, 10118–10121.
55
Washington Environmental Council v Bellon, 732 F.3d 1131 (9th Cir. 2013).
56
Juliana (n 9) 1245.
| 5
summary judgment motions or a trial.57 In Juliana, because the plain-
tiffs’ claims involved several disputed issues of fact, discovery and
then a trial should have followed the district court’s favourable rul-
ing.58 However, concerned about the implications of a trial, the gov-
ernment asked the district court to certify the case for interlocutory
appeal.59 When the district court denied the request, the federal gov-
ernment took the extraordinary step of asking the Ninth Circuit Court
of Appeals for a writ of mandamus. The Ninth Circuit denied the gov-
ernment’s request, noting that the government could not prove it was
entitled to the ‘extraordinary remedy’ of mandamus because the gov-
ernment would have further opportunities during the court of litiga-
tion to challenge plaintiffs’ claims.60 Seizing on language in the Ninth
Circuit’s decision, which noted that ‘some of the plaintiffs’ claims as
currently pleaded are quite broad, and some of the remedies the
plaintiffs seek may not be available as redress’,61 the government filed
new motions in the district court on 9 May 2018, seeking to immun-
ize President Trump from the lawsuit and seeking to prohibit discov-
ery and, ultimately, trial.62 For now, however, the Juliana case is
scheduled to proceed to trial in late October 2018.63
At trial, the plaintiffs will need to prove that the defendant fed-
eral agencies knowingly contributed to climate crisis and failed to
correct or mitigate the harms the agencies created.64 Specifically,
the plaintiffs would go to trial to prove, among other things,
that defendants played a significant role in creating the
current climate crisis, that defendants acted with full
knowledge of the consequences of their actions, and that
defendants have failed to correct or mitigate the harms
they helped create in deliberate indifference to the in-
juries caused by climate change.65
If the plaintiffs succeed at trial, the case would then proceed to
the relief stage. Plaintiffs have asked the court to order the federal
government to protect the plaintiffs’ fundamental rights and to
ensure protection of the trust assets by developing a plan to reduce
greenhouse gas emissions. If plaintiffs were to receive the outcome
they seek, the resulting plan would provide, at long last, a roadmap
for the United States to begin to reduce its dependence on fossil
fuels and chart a path towards a carbon-free future. Of course,
whether or not the United States develops such a plan will depend
heavily on the outcome of the likely judicial appeals to the Ninth
57
See Weaver and Kysar (n 1), citing CA Wright et al., Federal Practice and Procedure (2nd
edn, Thomson West 2016) para 3914.6.
58
Blumm and Wood (n 24) 55–56.
59
Order Denying Certification for Interlocutory Appeal (n 18).
60
In re United States (n 19). At the time this case note went to print, the deadline for the
government to seek en banc review or intervention by the Supreme Court had not yet
passed. While it is possible that the government could therefore appeal the Ninth Circuit’s
denial of the writ of mandamus, it appears that the government plans instead to further
delay the district court proceedings.
61
ibid 837.
62
Defendants’ Motion for Judgment on the Pleadings, Juliana v United States, No 6:15-cv-
0517 (D. Or. 9 May 2018); Defendants’ Motion for a Protective Order and for a Stay of all
Discovery, Juliana v United States, No 6:15-cv-0517 (D. Or. 9 May 2018).
63
Savage (n 20).
64
Juliana (n 9) 1252.
65
ibid.
6 | CASE NOTE

Circuit and Supreme Court – which could take years to resolve – as
well as on developments in US politics.
It is hard to imagine the US government under the Trump Adminis-
tration taking any type of meaningful action to mitigate climate change
and slow down fossil fuel development and use. Agencies under the
Trump Administration have worked to roll back nearly every Obama-
era regulation that sought to mitigate climate change,66 and several
cabinet members in the Trump Administration continue to question
the veracity of climate science.67 Even if a court were to order the fed-
eral government agencies to develop a plan to reduce greenhouse gas
emissions associated with the production, transportation and use of
fossil fuels, the resulting plan would likely fall far short of the Juliana
plaintiffs’ expectations or hopes. Realistically speaking, however,
unless Donald Trump is elected President for a second term,68 the
delays caused by appeals in the case will likely mean that responsibility
for implementing a remedy, if any, will fall on another administration.
While it is too soon to predict whether a different administration
will be up to the task of planning the transition to a decarbonized
energy system, we can look to the rhetoric surrounding the energy
policies of other recent US presidents to get a sense of the challenges
ahead. To date, no US president has explicitly embraced decarboniza-
tion. Presidents Obama and George W. Bush had highly divergent
views about the risks and realities of climate change: President Obama
recognized the threats of climate change during his first Presidential
campaign and oversaw the adoption of numerous climate policies
within various agencies, while President Bush questioned the accuracy
of climate science and human contribution to global warming. Both
presidents, however, espoused their support for an ‘all-of-the-above’
energy policy.69 Even so, President Obama came under fire for waging
a ‘war on coal’ as coal production and use declined, primarily due to
market forces.70 This combative rhetoric illustrates the political chal-
lenges associated with planning for an energy transition.
These political realities point to the positive impact that a
favourable decision in Juliana could have: if federal courts order
the next administration to develop a plan to decarbonize, the polit-
ical question will no longer be whether the United States will
transition away from fossil fuels, but how. By calling the question
on whether decarbonization should occur, the Juliana case could
help initiate necessary deliberations about how to phase out US
production of fossil fuels; how to support communities dependent
upon fossil fuels during the transition; how to quickly electrify the
US transportation sector; and how to support public and private
investment in zero-emission technologies. A favourable outcome in
Juliana could therefore finally force policymakers to engage in the
type of comprehensive planning that policy experts recognize is
necessary.
Although resolution of the case could take years, and will
almost certainly involve appeals to the Ninth Circuit and Supreme
Court, the Juliana decision may be the best hope the United States
has to finally respond to the realities of climate change. When con-
sidered in tandem with other innovative lawsuits around the world,
all of which seek to compel political leaders to respond to climate
change with urgency and comprehensive solutions, Juliana may
illustrate the importance of having courts push elected officials to
do the right thing.71
Melissa Powers is a Jeffrey Bain Faculty Scholar and Profes-
sor of Law at Lewis & Clark Law School in Portland, Oregon,
USA. She also directs the Green Energy Institute at Lewis &
Clark Law School. Melissa’s scholarship focuses on strategies
to decarbonize the energy system, climate change mitigation
and pollution control laws. Melissa was a Fulbright-Schuman
Scholar in Denmark and Spain in 2014–2015.
How to cite this article: Powers M. Juliana v United States:
The next frontier in US climate mitigation? RECIEL.
2018;00:1–6. https://doi.org/10.1111/reel.12248

66
Miller (n 5) 201–253.
67
ibid 194.
68
While it may seem unimaginable that Americans would re-elect Donald Trump to a sec-
ond term, some political observers believe he could win re-election. See T Frank, ‘Four
More Years: The Trump Reelection Nightmare and How to Stop It’ (Harper’s Magazine,
April 2018).
69
The ‘all-of-the-above’ energy policy posits that the United States can promote renewable
energy and decarbonization, while also continuing to extract and use fossil fuels. ‘Fact
Sheet: Obama Administration’s All-of-the-Above Approach to American Energy’ (The White
House, 21 March 2012). See JP Fershee, ‘Promoting an All of the Above Approach or Push-
ing (Oil) Addiction and Abuse? The Curious Role of Energy Subsidies and Mandates in US
Energy Policy’ (2012) 7 Environmental & Energy Law & Policy Journal 125.
70
JC Nagle, ‘The War on Coal’ (2017) 5 Louisiana State University Journal of Energy Law &
71
Resources 21. Weaver and Kysar (n 1) 347–354.