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Court tells teen plaintiffs it can’t force climate policy changes

Majority agreed the teens showed the federal government ‘has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change’

A three-judge panel of a federal appeals court said Friday that young climate activists established that government policies worsened climate change but dismissed the activists’ case seeking to force policy changes, ruling it was beyond the court’s power.

In a 2-1 decision, the 9th Circuit Court of Appeals panel accepted the argument that climate change had accelerated in recent years and that government policies encouraged fossil fuel use even as authorities knew it could have disastrous consequences. But the Constitution doesn’t empower courts to force such sweeping changes to policies at several federal agencies, the majority ruled.

The order reversed a lower court’s ruling that the case could proceed because the plaintiffs had shown they were harmed by a host of federal policies.

The majority opinion said the 21 plaintiffs, who were teenagers and pre-teens when they first sued in Oregon federal court in 2015, showed “the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”

[Safe climate a constitutional right, young plaintiffs tell court]

But, as government attorneys said during oral arguments last June, the courts lack the power to intervene in the policies to which the activists objected.

The activists had asked the court to order several executive branch agencies to enact a plan to phase out fossil fuels and reduce carbon dioxide emissions. The panel said such a plan required not only an order to halt current policies but also several complex new policies, which could only be enacted by the executive or legislative branches of government.

Electoral relief

Government attorneys had argued that instead of suing, the activists should petition any of the 12 federal agencies that are defendants in the case for policy changes. The panel agreed the agencies would be the appropriate place to seek policy changes and encouraged the plaintiffs, if they were unable to win changes from current officeholders and officials, to challenge them through the electoral process.

“Reluctantly, we conclude that such relief is beyond our constitutional power,” Judge Andrew D. Hurwitz wrote for the majority. “The plaintiffs’ impressive case for redress must be presented to the political branches of government.”

Throughout the case, the activists have argued that the continued ill effects of climate change will rob them of basic civil rights.

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In a dissent, Judge Josephine L. Staton took that framing and argued that because fundamental rights have been threatened, the court did hold the power to force changes, as courts had in civil rights cases. The potential destruction caused by climate change will “destroy the United States as we currently know it.” Such a threat can be protected against by courts, she wrote.

“If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly,” she wrote. “When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”

Neither attorneys for the activists nor the U.S. Department of Justice, which argued the case for the government, responded to requests for comment by press time.

Climate change has emerged as an animating issue for young people around the world, many of whom consider it an existential threat. The Swedish teenager Greta Thunberg, who has become an international symbol of youth activism on the issue, testified to a House hearing, spoke to the United Nations and helped organize a youth climate strike in September.

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