Yesterday, the Ninth Circuit issued an order dismissing the Juliana litigation. In this case, the plaintiffs had asserted that the government had knowingly violated their due process rights by encouraging and permitting the combustion of fossil fuels, and had sought a declaratory judgment and injunctive relief based upon “the federal government's fiduciary role in preserving the atmosphere.” In essence, this case was an example of “atmospheric trust litigation,” a concept based on the public trust doctrine and international responsibility related to natural resources. 

The Ninth Circuit had previously dismissed the case on the basis that the plaintiffs lacked standing in January 2020, but the lower court subsequently granted the plaintiffs' motion for leave to amend the complaint in June 2023. The government appealed that decision. The Ninth Circuit took exception to the lower court's decision that enabled the case to continue, re-affirming their earlier ruling that “the Juliana plaintiffs lack standing to bring their claims” and ordering that “[t]he district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.”

Although the Ninth Circuit's decision could simply be interpreted as an appellate court reinforcing their control over an errant district court that apparently disobeyed an earlier instruction, the implications of this decision are significant. In particular, the decision here by the Ninth Circuit--a court generally viewed as favorably disposed towards environmental concerns--may discourage further constitutional climate litigation, at least in the federal courts. (The only notable victory of this type of litigation to date has been in the Montana state courts.) The Ninth Circuit's dismissal for lack of standing may steer future cases featuring these litigation theories to state courts, which have fewer restrictions on plaintiffs' standing, and thus ability to bring cases.