On November 10, 2016, a federal district court in Oregon allowed litigation to proceed against the federal government based on its alleged failure to protect future generations against the threat of climate change. See Juliana v. United States, No. 15-1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016). The decision represents the first time a court has determined that plaintiffs sufficiently alleged that the government’s conduct infringed their constitutional right to a clean and healthy climate system.

The plaintiffs — including a group of children and young adults between the ages of eight and nineteen — contend that the government’s failure to address climate change has violated their Fifth Amendment substantive due process rights to life, liberty, and property. Specifically, they assert that the government has violated these rights by directly causing an increase in atmospheric CO₂levels. They allege that higher CO₂ levels interfere with a stable climate and that the government has knowingly endangered the plaintiffs’ health and welfare by approving and promoting fossil fuel development, including through fossil fuel exploration, extraction, and production. The plaintiffs also contend that the government has violated its obligations under the public trust doctrine to hold natural resources such as air and water in public trust for the people and for future generations.

The court addressed several of these issues when it ruled on the government’s and industry intervenors’ separate motions to dismiss:

• First, the court determined that the underlying issue involving climate change did not involve a “political question,” which limits a federal court’s ability to hear a case when it involves an issue committed to a different branch of government. Id. at *4-9.
• Second, the court determined that several of the plaintiffs had alleged individual injuries in relation to climate change which gave them standing to sue, including algae blooms in drinking water; lower water levels and droughts that kill wild salmon; high temperatures impacting orchards on a farm; decreased snowpack and an inability to ski; dry conditions that cause forest fires and aggravate asthma; as well as recent floods in Louisiana. Id. at *9-10.
• Third, the court held that the plaintiffs asserted sufficient facts that the government infringed a fundamental right to a clean and healthy climate system under the Due Process Clause of the Fifth Amendment. Id. at *15-16. Although some state constitutions include individual rights to similar environmental protections, before this case, no court had held that the United States Constitution included this fundamental right.
• Fourth, the court allowed the plaintiffs’ public trust claims to proceed. Here, plaintiffs alleged that the government violated its obligations under the public trust doctrine to hold natural resources in public trust for future generations. Even though the court concluded it was not necessary at the motion to dismiss stage to determine whether the atmosphere is a public trust asset, the court suggested it would be. Id. at *20 n.10.

It remains to be seen how this case will unfold. But at least at the pleading stage, the decision represents a novel approach to addressing climate change issues.