A Climate-Lawsuit Dissent That Changed My Mind

The American Revolution had scarcely been over a month when, in a farewell letter to the Continental Army, General George Washington admitted something startling: The War of Independence wasn’t necessarily a good thing. At least, it wasn’t yet.

“It is yet to be decided,” he wrote, “whether the Revolution must ultimately be considered as a blessing or a curse.” His audience had just spent eight years on this fight, but he urged them to look past the current decade and even the current century. The new country would shape the future of far more people than just the troops themselves, he cautioned, and the success or failure of the United States would determine the life course of every American who would ever be born. “For with our fate,” Washington wrote, “will the destiny of unborn Millions be involved.”

Last week, the Ninth Circuit Court of Appeals rejected an extraordinary lawsuit brought by several of those millions against their own government. Twenty-one American children alleged that the federal government’s failure to fight climate change was not only poor public policy or an abdication of leadership, but also a violation of the Constitution. The Fifth Amendment says that Americans cannot be “deprived of life, liberty, or property, without due process of law.” The children’s complaint centered on the word life: By losing a “climate system capable of sustaining human life,” they argued, they had been stripped of their constitutional rights.

A panel of three federal judges disagreed. “Even assuming such a broad constitutional right exists,” the judicial branch cannot do anything about it, ruled Judge Andrew Hurwitz, writing for a two-judge majority. The courts, he “reluctantly” wrote, simply do not have the broad power to mandate climate policy under the Constitution.

He advised the kids to go to Congress or the White House instead. “The plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box,” he wrote. “That the other branches may have abdicated their responsibility to remediate the problem does not confer on … courts, no matter how well-intentioned, the ability to step into their shoes.” (Or their hip waders, presumably, if the flooding is bad.)

Read: Trump isn’t a climate denier. He’s worse.

The case was always a long shot, and the response of even the friendliest legal experts has been dismay but not surprise. I’ll admit that, as a climate reporter, I had tuned the case out. The kids were asking a federal court—and, inevitably, the Supreme Court—to take one of its most extraordinary interventions into American life since Brown v. Board of Education, which ended lawful racial segregation in public schools.

Yet addressing the climate crisis through the judiciary would be much harder than abolishing segregation—and everyone in the case seemed to know it. As the kids’ legal team argued, fixing climate change requires the full-scale transformation of the country’s energy system. It would require investing money in some practices and banning others. It would, at the very least, require the government to stop leasing public lands for oil and gas extraction. This kind of detail-oriented policy making always makes judges nervous. Federal judges are a peaceable cohort who, faced even with a grave crisis, prefer to stick to conflict resolution.

The kids, in response to this issue, asked the courts merely to order that Congress and the president write their own plan to fight climate change. Even this proved too ambitious. Hurwitz ruled that even if the courts issued such an order, there would be no way to measure the sufficiency of the plan without again engaging in judicial policy making.

And honestly, that may be a blessing for climate-concerned progressives. Since the kids first sued, in 2015, the judiciary has been flooded with conservatives: One in every four circuit judges is now a Donald Trump appointee. Justice Anthony Kennedy, the Supreme Court’s environmental swing vote, has retired. It was never clear to me why the kids’ presumably left-leaning lawyers wanted this newly conservative judiciary and this Supreme Court to formulate new constitutional climate law.

And yet. As I read the sole dissenting opinion in the case, written by Judge Josephine Staton, I found myself moved. I urge you to read it, even if you are not familiar with legal jargon or if you are broadly skeptical of the case’s aims. I’ve reproduced it below.

Read: The concession to climate change I will not make

Staton’s opinion deals directly with the question that Washington raised almost 240 years ago: What role should all those “unborn Millions”—those many future Americans—play in the constitutional order? (This is not a question about the start of biological life: Whether you think life begins in the first trimester or the fourth, a 50-year-old in 2080 will still be a legal person, even if he does not exist today.) And more to the point, what responsibility does the country have to preserve itself for the future? Can the courts help the United States be a “blessing” forever?

It is also written urgently and plainly, if you ignore the occasional legal citation. It frames a growing rift on the left, about whether it’s best to address climate change through slow progress achieved institutionally or through a decisive rupture. (Every judge on the panel, including those who ruled against the kids, was appointed by a Democratic president.) And frankly, it’s like reading a document from an alternate universe—a much kinder one—in which America’s elected and appointed rulers take climate change seriously and debate the intensity of their response, rather than concern-trolling about whether the planet is warming at all.

The dissent begins with a thunderclap. “In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity,” Staton writes. “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

This is the central thrust of Staton’s argument: that according to studies conducted by the federal government—studies that were not challenged by either the Trump administration or the courts—climate change has the potential to destroy the federal government. “Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction,” she writes. In the face of such danger, even partial action by the judiciary is justified. “Considering plaintiffs seek no less than to forestall the Nation’s demise,” she says, “even a partial and temporary reprieve would constitute meaningful redress.”

The physics of the threat of climate change specifically justify action, since every additional molecule of carbon dioxide in the atmosphere makes global warming worse. “The majority portrays any relief we can offer as just a drop in the bucket,” she writes. “In a previous generation, perhaps that characterization would carry the day and we would hold ourselves impotent to address plaintiffs’ injuries. But we are perilously close to an overflowing bucket. These final drops matter. A lot. Properly framed, a court order—even one that merely postpones the day when remedial measures become insufficiently effective—would likely have a real impact on preventing the impending cataclysm.”

Furthermore, she argues that the courts do have an extraordinary responsibility to take action when the nation—or the Constitution—is threatened. “In taking the Presidential Oath, the Executive must vow to ‘preserve, protect and defend the Constitution of the United States,’” Staton writes. Emphasis on preserve there. And the country’s most beloved leaders have since grappled with this “perpetuity principle”:

And what about the idea that courts cannot oversee a policy response to climate change? “On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists,” she writes of her agreement with the majority. “But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.”

Finally, she argues that such action must come now. “Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that ‘the arc of the moral universe is long, but it bends towards justice,’” she writes. Some 91 years passed between the Emancipation Proclamation and Brown v. Board of Education. “The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.”

“Where is the hope in today’s decision?” she asks. “Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. 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?”

Of course, the dissent did not work. The children’s case has failed. Today, the United States finds itself in a cruel and odd position. Most Americans now believe that climate change represents a concerning threat. Yet the two branches constitutionally empowered to do anything about it have, so far, shirked that duty, and it is not clear that further public persuasion will stir them to action. Now the judiciary has tied its hands on the issue. It is time to start asking what changes must take place—perhaps in the Constitution itself—for the country to begin to fight this threat.

I’ve posted Staton’s full dissent below.

STATON, District Judge, dissenting:

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewid e prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent.

As the majority recognizes, and the government does not contest, carbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions created by burning fossil fuels are devastating the planet. According to one of plaintiffs’ experts, the inevitable result, absent immediate action, is “an inhospitable future . . . marked by rising seas, coastal city functionality loss, mass migrations, resource wars, food shortages, heat waves, mega-storms, soil depletion and desiccation, freshwater shortage, public health system collapse, and the extinction of increasing numbers of species.” Even government scientists2 project that, given current warming trends, sea levels will rise two feet by 2050, nearly four feet by 2070, over eight feet by 2100, 18 feet by 2150, and over 31 feet by 2200. To put that in perspective, a three-foot sea level rise will make two million American homes uninhabitable; a rise of approximately 20 feet will result in the total loss of Miami, New Orleans, and other coastal cities. So, as described by plaintiffs’ experts, the injuries experienced by plaintiffs are the first small wave in an oncoming tsunami—now visible on the horizon of the not-so-distant future—that will destroy the United States as we currently know it.

What sets this harm apart from all others is not just its magnitude, but its irreversibility. The devastation might look and feel somewhat different if future generations could simply pick up the pieces and restore the Nation. But plaintiffs’ experts speak of a certain level of global warming as “locking in” this catastrophic damage. Put more starkly by plaintiffs’ expert, Dr. Harold R. Wanless, “[a]tmospheric warming will continue for some 30 years after we stop putting more greenhouse gasses into the atmosphere. But that warmed atmosphere will continue warming the ocean for centuries, and the accumulating heat in the oceans will persist for millennia” (emphasis added). Indeed, another of plaintiffs’ experts echoes, “[t]he fact that GHGs dissipate very slowly from the atmosphere . . . and that the costs of taking CO2 out of the atmosphere through non-biological carbon capture and storage are very high means that the consequences of GHG emissions should be viewed as effectively irreversible” (emphasis added). In other words, “[g]iven the self-reinforcing nature of climate change,” the tipping point may well have arrived, and we may be rapidly approaching the point of no return.

Despite countless studies over the last half century warning of the catastrophic consequences of anthropogenic greenhouse gas emissions, many of which the government conducted, the government not only failed to act but also “affirmatively promote[d] fossil fuel use in a host of ways.” According to plaintiffs’ evidence, our nation is crumbling—at our government’s own hand—into a wasteland. In short, the government has directly facilitated an existential crisis to the country’s perpetuity.

In tossing this suit for want of standing, the majority concedes that the children and young adults who brought suit have presented enough to proceed to trial on the first two aspects of the inquiry (injury in fact and traceability). But the majority provides two-and-a-half reasons for concluding that plaintiffs’ injuries are not redressable. After detailing its “skeptic[ism]” that the relief sought could “suffice to stop catastrophic climate change or even ameliorate [plaintiffs’] injuries[,]” the majority concludes that, at any rate, a court would lack any power to award it. In the majority’s view, the relief sought is too great and unsusceptible to a judicially administrable standard.

To explain why I disagree, I first step back to define the interest at issue. While standing operates as a threshold issue distinct from the merits of the claim, “it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975). And, unlike the majority, I believe the government has more than just a nebulous “moral responsibility” to preserve the Nation.

The Constitution protects the right to “life, liberty, and property, to free speech, a free press, [and] freedom of worship and assembly.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Through “reasoned judgment,” the Supreme Court has recognized that the Due Process Clause, enshrined in the Fifth and Fourteenth Amendments, also safeguards certain “interests of the person so fundamental that the [government] must accord them its respect.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015). These include the right to marry, Loving v. Virginia, 388 U.S. 1, 12 (1967), to maintain a family and rear children, M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996), and to pursue an occupation of one’s choosing, Schware v. Bd. of Bar Exam., 353 U.S. 232, 238–39 (1957). As fundamental rights, these “may not be submitted to vote; they depend on the outcome of no elections.” Lucas v. Forty-Fourth Gen. Assembly, 377U.S. 713, 736 (1964) (quoting Barnette, 319 U.S. at 638).

Some rights serve as the necessary predicate for others; their fundamentality therefore derives, at least in part, from the necessity to preserve other fundamental constitutional protections. Cf., e.g., Timbs v. Indiana, 139 S. Ct. 682, 689 (2019) (deeming a right fundamental because its deprivation would “undermine other constitutional liberties”). For example, the right to vote “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Because it is “preservative of all rights,” the Supreme Court has long regarded suffrage “as a fundamental political right.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). This holds true even though the right to vote receives imperfect express protection in the Constitution itself: While several amendments proscribe the denial or abridgment of suffrage based on certain characteristics, the Constitution does not guarantee the right to vote ab initio. See U.S. Const. amends. XV, XIX, XXIV, XXVI; cf. U.S. Const. art. I, § 4, cl. 1.

Much like the right to vote, the perpetuity of the Republic occupies a central role in our constitutional structure as a “guardian of all other rights,” Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982). “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society . . . .” Cox v. New Hampshire, 312 U.S. 569, 574 (1941); see also The Ku Klux Cases, 110 U.S. 651, 657–68 (1884). And, of course, in our system, that organized society consists of the Union. Without it, all the liberties protected by the Constitution to live the good life are meaningless.

This observation is hardly novel. After securing independence, George Washington recognized that “the destiny of unborn millions” rested on the fate of the new Nation, cautioning that “whatever measures have a tendency to dissolve the Union, or contribute to violate or lessen the Sovereign Authority, ought to be considered as hostile to the Liberty and Independency of America[.]” President George Washington, Circular Letter of Farewell to the Army (June 8, 1783). Without the Republic’s preservation, Washington warned, “there is a natural and necessary progression, from the extreme of anarchy to the extreme of Tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” Id.

When the Articles of the Confederation proved ill-fitting to the task of safeguarding the Union, the framers formed the Constitutional Convention with “the great object” of “preserv[ing] and perpetuat[ing]” the Union, for they believed that “the prosperity of America depended on its Union.” The Federalist No. 2, at 19 (John Jay) (E. H. Scott ed., 1898); see also Letter from James Madison to Thomas Jefferson (Oct. 24, 1787)4 (“It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States.”). In pressing New York to ratify the Constitution, Alexander Hamilton spoke of the gravity of the occasion: “The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed—the fate of an empire, in many respects the most interesting in the world.” The Federalist No. 1, at 11 (Alexander Hamilton) (E. H. Scott ed., 1898). In light of this animating principle, it is fitting that the Preamble declares that the Constitution is intended to secure “the Blessings of Liberty” not just for one generation, but for all future generations—our “Posterity.”

The Constitution’s structure reflects this perpetuity principle. See Alden v. Maine, 527 U.S. 706, 713 (1999) (examining how “[v]arious textual provisions of the Constitution assume” a structural principle). In taking the Presidential Oath, the Executive must vow to “preserve, protect and defend the Constitution of the United States,” U.S. Const. art. II, § 1, cl. 8, and the Take Care Clause obliges the President to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. Likewise, though generally not separately enforceable, Article IV, Section 4 provides that the “United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and . . . against domestic Violence.” U.S. Const. art. IV, § 4; see also New York v. United States, 505 U.S. 144, 184–85 (1992).

Less than a century after the country’s founding, the perpetuity principle undergirding the Constitution met its greatest challenge. Faced with the South’s secession, President Lincoln reaffirmed that the Constitution did not countenance its own destruction. “[T]he Union of these States is perpetual[,]” he reasoned in his First Inaugural Address, because “[p]erpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861). In justifying this constitutional principle, Lincoln drew from history, observing that “[t]he Union is much older than the Constitution.” Id. He reminded his fellow citizens, “one of the declared objects for ordaining and establishing the Constitution was ‘to form a more perfect Union.’” Id. (emphasis added) (quoting U.S. Const. pmbl.). While secession manifested the existential threat most apparently contemplated by the Founders—political dissolution of the Union—the underlying principle applies equally to its physical destruction.

This perpetuity principle does not amount to “a right to live in a contaminant-free, healthy environment.” Guertin v. Michigan, 912 F.3d 907, 922 (6th Cir. 2019). To be sure, the stakes can be quite high in environmental disputes, as pollution causes tens of thousands of premature deaths each year, not to mention disability and diminished quality of life.5 Many abhor living in a polluted environment, and some pay with their lives. But mine-run environmental concerns “involve a host of policy choices that must be made by . . . elected representatives, rather than by federal judges interpreting the basic charter of government[.]” Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992). The perpetuity principle is not an environmental right at all, and it does not task the courts with determining the optimal level of environmental regulation; rather, it prohibits only the willful dissolution of the Republic.

That the principle is structural and implicit in our constitutional system does not render it any less enforceable. To the contrary, our Supreme Court has recognized that “[t]here are many [] constitutional doctrines that are not spelled out in the Constitution” but are nonetheless enforceable as “historically rooted principle[s] embedded in the text and structure of the Constitution.” Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019). For instance, the Constitution does not in express terms provide for judicial review, Marbury v. Madison, 5 U.S. 137, 176–77 (1803); sovereign immunity (outside of the Eleventh Amendment’s explicit restriction), Alden, 527 U.S. at 735– 36; the anticommandeering doctrine, Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018); or the regimented tiers of scrutiny applicable to many constitutional rights, see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994). Yet these doctrines, as well as many other implicit principles, have become firmly entrenched in our constitutional landscape. And, in an otherwise justiciable case, a private litigant may seek to vindicate such structural principles, for they “protect the individual as well” as the Nation. See Bond v. United States, 564 U.S. 211, 222, 225–26 (2011); INS. v. Chadha, 462 U.S. 919, 935–36 (1983).

In Hyatt, for instance, the Supreme Court held that a state could not be sued in another state’s courts without its consent. Although nothing in the text of the Constitution expressly forbids such suits, the Court concluded that they contravened “the ‘implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.’” Hyatt, 139 S. Ct. at 1492 (quoting Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting)). So too here.

Nor can the perpetuity principle be rejected simply because the Court has not yet had occasion to enforce it as a limitation on government conduct. Only over time, as the Nation confronts new challenges, are constitutional principles tested. For instance, courts did not recognize the anticommandeering doctrine until the 1970s because “[f]ederal commandeering of state governments [was] such a novel phenomenon.” Printz v. United States, 521 U.S. 898, 925 (1997). And the Court did not recognize that cell-site data fell within the Fourth Amendment until 2018. In so holding, the Court rejected “a ‘mechanical interpretation’ of the Fourth Amendment” because “technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes[.]” Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018). Thus, it should come as no surprise that the Constitution’s commitment to perpetuity only now faces judicial scrutiny, for never before has the United States confronted an existential threat that has not only gone unremedied but is actively backed by the government.

The mere fact that we have alternative means to enforce a principle, such as voting, does not diminish its constitutional stature. Americans can vindicate federalism, separation of powers, equal protection, and voting rights through the ballot box as well, but that does not mean these constitutional guarantees are not independently enforceable.

By its very nature, the Constitution “withdraw[s] certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U.S. at 638. When fundamental rights are at stake, individuals “need not await legislative action.” Obergefell, 135 S. Ct. at 2605.

Indeed, in this sui generis circumstance, waiting is not an option. Those alive today are at perhaps the singular point in history where society (1) is scientifically aware of the impending climate crisis, and (2) can avoid the point of no return. And while democracy affords citizens the right “to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times[,]” id. (quoting Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 312 (2014)), that process cannot override the laws of nature. Or, more colloquially, we can’t shut the stable door after the horse has bolted.

As the last fifty years have made clear, telling plaintiffs that they must vindicate their right to a habitable United States through the political branches will rightfully be perceived as telling them they have no recourse. The political branches must often realize constitutional principles, but in a justiciable case or controversy, courts serve as the ultimate backstop. To this issue, I turn next.

Of course, “it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996). So federal courts are not free to address every grievance. “Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972). Standing is “a doctrine rooted in the traditional understanding of a case or controversy,” developed to “ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

A case is fit forjudicial determination only if the plaintiff has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); then citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). As to the first two elements, my colleagues and I agree: Plaintiffs present adequate evidence at this pre-trial stage to show particularized, concrete injuries to legally-protected interests, and they present further evidence to raise genuine disputes as to whether those injuries—at least in substantial part—are fairly traceable to the government’s conduct at issue. See Maj. Op. at 18–21. Because I find that plaintiffs have also established the third prong for redressability, I conclude that plaintiffs’ legal stake in this action suffices to invoke the adjudicative powers of the federal bench.

“Redressability” concerns whether a federal court is capable of vindicating a plaintiff’s legal rights. I agree with the majority that our ability to provide redress is animated by two inquiries, one of efficacy and one of power. Maj. Op. at 21 (citing M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018)). First, as a causal matter, is a court order likely to actually remediate the plaintiffs’ injury? If so, does the judiciary have the constitutional authority to levy such an order? Id.

Addressing the first question, my colleagues are skeptical that curtailing the government’s facilitation of fossil-fuel extraction and combustion will ameliorate the plaintiffs’ harms. See Maj. Op. at 22–25. I am not, as the nature of the injury at stake informs the effectiveness of the remedy. See Warth, 422 U.S. at 500.

As described above, the right at issue is not to be entirely free from any climate change. Rather, plaintiffs have a constitutional right to be free from irreversible and catastrophic climate change. Plaintiffs have begun to feel certain concrete manifestations of this violation, ripening their case for litigation, but such prefatory harms are just the first barbs of an ongoing injury flowing from an ongoing violation of plaintiffs’ rights. The bulk of the injury is yet to come. Therefore, practical redressability is not measured by our ability to stop climate change in its tracks and immediately undo the injuries that plaintiffs suffer today— an admittedly tall order; it is instead measured by our ability to curb by some meaningful degree what the record shows to be an otherwise inevitable march to the point of no return. Hence, the injury at issue is not climate change writ large; it is climate change beyond the threshold point of no return. As we approach that threshold, the significance of every emissions reduction is magnified.

The majority portrays any relief we can offer as just a drop in the bucket. See Maj. Op. at 22–25. In a previous generation, perhaps that characterization would carry the day and we would hold ourselves impotent to address plaintiffs’ injuries. But we are perilously close to an overflowing bucket. These final drops matter. A lot. Properly framed, a court order—even one that merely postpones the day when remedial measures become insufficiently effective—would likely have a real impact on preventing the impending cataclysm. Accordingly,I conclude that the court could do something to help the plaintiffs before us.

And “something” is all that standing requires. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court explicitly held that a non-negligible reduction in emissions—there, by regulating vehicles emissions—satisfied the redressability requirement of Article III standing:

In other words, under Article III, a perceptible reduction in the advance of climate change is sufficient to redress a plaintiff’s climate change-induced harms. Full stop. The majority dismisses this precedent because Massachusetts v. EPA involved a procedural harm, whereas plaintiffs here assert a purely substantive right. Maj. Op. at 24. But this difference in posture does not affect the outcome.

While the redressability requirement is relaxed in the procedural context, that does not mean (1) we must engage in a similarly relaxed analysis whenever we invoke Massachusetts v. EPA or (2) we cannot rely on Massachusetts v. EPA’s substantive examination of the relationship between government action and the course of climate change. Accordingly, here, we do not consider the likelihood that plaintiffs will prevail in any newly-awarded agency procedure, nor whether granting access to that procedure will redress plaintiffs’ injury. Cf. Massachusetts v. EPA, 549 U.S. at 517–18; Lujan, 504 U.S. at 572 n.7. Rather, we assume plaintiffs will prevail—removing the procedural link from the causal chain—and we resume our traditional analysis to determine whether the desired outcome would in fact redress plaintiffs’ harms. In Massachusetts v. EPA, the remaining substantive inquiry w as w het her red ucing emissions from fossil-fuel combustion would likely ameliorate climate change-induced injuries despite the global nature of climate change (regardless of whether renewed procedures were themselves likely to mandate such lessening). The Supreme Court unambiguously answered that question in the affirmative. That holding squarely applies to the instant facts, rendering the absence of a procedural right here irrelevant.

The majority laments that it cannot step into the shoes of the political branches, see Maj. Op. at 32, but appears ready to yield even if those branches walk the Nation over a cliff. This deference-to-a-fault promotes separation of powers to the detriment of our countervailing constitutional mandate to intervene where the political branches run afoul of our foundational principles. Our tripartite system go government is often and aptly described as one of “checks and balances.” The doctrine of standing preserves balance among the branches by keeping separate questions of general governance and those of specific legal entitlement. But the doctrine of judicial review compels federal courts to fashion and effectuate relief to right legal wrongs, even when—as frequently happens—it requires that we instruct the other branches as to the constitutional limitations on their power. Indeed, sometimes “the [judicial and governance] roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, . . . orders the alteration of an institutional organization or procedure that causes the harm.” Lewis, 518 U.S. at 350; cf. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (“Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.”). In my view, this Court must confront and reconcile this tension before deciding that thorny questions of standing preclude review in this case. And faithful application of our history and precedents reveals that a failure to do so leads to the wrong result.

Taking the long (but essential) way around, I begin first by acknowledging explicitly what the majority does not mention: our history plainly establishes an ambient presumption of judicial review to which separation-of- powers concerns provide a rebuttal under limited circumstances. Few would contest that “[i]t is emphatically the province and duty of the judicial department” to curb acts of the political branches that contravene those fundamental tenets of American life so dear as to be constitutionalized and thus removed from political whims. See Marbury, 5U.S. at 177–78. This presumptive authority entails commensurat e pow er t o grant appropriat e red ress, as recognized in Marbury, “which effectively place[s] upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1874 (2017) (Breyer, J., dissenting). That is, “there must be something ‘peculiar’ (i.e., special) about a case that warrants ‘excluding the injured party from legal redress and placing it within that class of cases which come under the description of damnum absque injuria—a loss without an injury.’” Id. (cleaned up) (quoting Marbury, 5 U.S. at 163–64). In sum, although it is the plaintiffs’ burden to establish injury in fact, causation, and redressability, it is the government’s burden to establish why this otherwise-justiciable controversy implicates grander separation-of-powers concerns not already captured by those requirements. We do not otherwise abdicate our duty to enforce constitutional rights.

Without explicitly laying this groundwork, the majority nonetheless suggests that this case is “special”—and beyond our redress—because plaintiffs’ requested relief requires (1) the messy business of evaluating competing policy considerations to steer the government away from fossil fuels and (2) the intimidating task of supervising implementation over many years, if not decades. See Maj. Op. at 25–27. I admit these are daunting tasks, but we are constitutionally empowered to undertake them. There is no justiciability exception for cases of great complexity and magnitude.

I readily concede that courts must on occasion refrain from answering those questions that are truly reserved for the political branches, even where core constitutional precepts are implicated. This deference is known as the “political question doctrine,” and its applicability is governed by a well-worn multifactor test that counsels judicial deference where there is:

Baker v. Carr, 369 U.S. 186, 217 (1962) [...] Here, confronted by difficult questions on the constitutionality of policy, the majority creates a minefield of politics en route to concluding that we cannot adjudicate this suit. And the majority’s map for navigating that minefield is Rucho v. Common Cause, 139 S. Ct. 2484 (2019), an inapposite case about gerrymandering. My colleagues conclude that climate change is too political for the judiciary to touch by likening it to the process of political representatives drawing political maps to elect other political representatives. I vehemently disagree.

The government does not address on appeal the district judge’s reasoning that the first, third, fourth, fifth and sixth Baker factors do not apply here. Neither does the majority rely on any of these factors in its analysis. In relevant part, I find the opinion below both thorough and well-reasoned, and I adopt its conclusions. I note, however, that the absence of the first Baker factor—whether the Constitution textually delegates the relevant subject matter to another branch—is especially conspicuous. As the district judge described, courts invoke this factor only where the Constitution makes an unambiguous commitment of responsibility to one branch of government. Very few cases turn on this factor, and almost all that do pertain to two areas of constitutional authority: foreign policy and legislative proceedings. See, e.g., Marshall Islands, 865 F.3d at 1200–01 (treaty enforcement); Corrie, 503 F.3d at 983 (military aid); Nixon, 506 U.S. at 234 (impeachment proceedings); see also Davis v. Passman, 442 U.S. 228, 235 n.11 (1979) (“[J]udicial review of congressional employment d ecisions is constitutionally limited only by the reach of the Speech or Debate Clause[,] . . . [which is] a paradigm example of a textually demonstrable constitutional commitment of [an] issue to a coordinate political department.”) (internal quotation marks omitted); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015) (“The text and structure of the Constitution grant the President the power to recognize foreign nations and governments.”).

Since this matter has been under submission, the Supreme Court cordoned off an additional area from judicial review based in part on a textual commitment to another branch: partisan gerrymandering. See Rucho, 139 S. Ct. at 2494–96.12 Obviously, the Constitution does not explicitly address climate change. But neither does climate change implicitly fall within a recognized political-question area. As the district judge described, the questions of energy policy at stake here may have rippling effects on foreign policy considerations, but that is not enough to wholly exempt the subject matter from our review. See Juliana v. United States, 217 F. Supp. 3d 1224, 1238 (D. Or. 2016) (“[U]nlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision.”); see also Baker, 369 U.S. at 211 (“[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”).

Without endorsement from the constitutional text, the majority’s theory is grounded exclusively in the second Baker factor: a (supposed) lack of clear judicial standards for shaping relief. Relying heavily on Rucho, the majority contends the we cannot formulate standards(1)to determine what relief “is sufficient to remediate the claimed constitutional violation” or (2) to “supervise[] or enforce[]” such relief. Maj. Op. at 29.

The first point is a red herring. Plaintiffs submit ample evidence that there is a discernable “tipping point” at which the government’s conduct turns from facilitating mere pollution to inducing an unstoppable cataclysm in violation of plaintiffs’ rights. Indeed, the majority itself cites plaintiffs’ evidence that “atmospheric carbon levels of 350 parts per million are necessary to stabilize the climate.” Id. at 24. This clear line stands in stark contrast to Rucho, which held that—even assuming an excessively partisan gerrymander was unconstitutional—no standards exist by which to determine when a rights violation has even occurred. There, “[t]he central problem [wa]s not determining whether a jurisdiction has engaged in partisan gerrymandering. It [was] determining when gerrymandering has gone too far.” Rucho, 139 S. Ct. at 2497 (internal quotation marks omitted). […]

Here, the right at issue is fundamentally one of a discernable standard: the amount of fossil-fuel emissions that will irreparably devastate our Nation. That amount can be established by scientific evidence like that proffered by the plaintiffs. Moreover, we need not definitively determine that standard today. Rather, we need conclude only that plaintiffs have submitted sufficient evidence to create a genuine dispute as to whether such an amount can possibly be determined as a matter of scientific fact. Plaintiffs easily clear this bar. Of course, plaintiffs will have to carry their burden of proof to establish this fact in order to prevail at trial, but that issue is not before us. We must not get ahead of ourselves.

The procedural posture of this case also informs the question of oversight and enforcement. It appears the majority’s real concerns lie not in the judiciary’s ability to draw a line between lawful and unlawful conduct, but in our ability to equitably walk the government back from that line without wholly subverting the authority of our coequal branches. My colleagues take great issue with plaintiffs’ request for a “plan” to reduce fossil-fuel emissions. I am not so concerned. At this stage, we need not promise plaintiffs the moon (or, more apropos, the earth in a habitable state).

For purposes of standing, we need hold only that the trial court could fashion some sort of meaningful relief should plaintiffs prevail on the merits.

Nor would any such remedial “plan” necessarily require the courts to muck around in policymaking to an impermissible degree; the scope and number of policies a court would have to reform to provide relief is irrelevant to the second Baker factor, which asks only if there are judicially discernable standards to guide that reformation. Indeed, our history is no stranger to widespread, programmatic changes in government functions ushered in by the judiciary’s commitment to requiring adherence to the Constitution. Upholding the Constitution’s prohibition on cruel and unusual punishment, for example, the Court ordered the overhaul of prisons in the Nation’s most populous state. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”) And in its finest hour, the Court mandated the racial integration of every public school—state and federal—in the Nation, vindicating the Constitution’s guarantee of equal protection under the law. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954). In the school desegregation cases, the Supreme Court was explicitly unconcerned with the fact that crafting relief would require individualized review of thousands of state and local policies that facilitated segregation. Rather, a unanimous Court held that the judiciary could work to dissemble segregation over time while remaining cognizant of the many public interests at stake:

Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300–01 (1955).

As we are all too aware, it took decades to even partially realize Brown’s promise, but the slow churn of constitutional vindication did not dissuade the Brown Court, and it should not dissuade us here. Plaintiffs’ request for a “plan” is neither novel nor judicially incognizable. Rather, consistent with our historical practices, their request is a recognition that remedying decades of institutionalized violations may take some time. Here, too, decelerating from our path toward cataclysm will undoubtedly require “elimination of a variety of obstacles.” Those obstacles may be great in number, novelty, and magnitude, but there is no indication that they are devoid of discernable standards. Busing mandates, facilities allocation, and district-drawing were all “complex policy decisions” faced by post-Brown trial courts, see Maj. Op. at 25, and I have no doubt that disentangling the government from promotion of fossil fuels will take an equally deft judicial hand. Mere complexity, however, does not put the issue out of the courts’ reach. Neither the government nor the majority has articulated why the courts could not weigh scientific and prudential considerations—as we often do—to put the government on a path to constitutional compliance.

The majority also expresses concern that any remedial plan would require us to compel “the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change[.]” Id. at 25. Even if the operative complaint is fairly read as requesting an affirmative scheme to addressall drivers of climate change, however caused, see id. at 23 n.6., such an overbroad request does not doom our ability to redress those drivers implicated by the conduct at issue here. Courts routinely grant plaintiffs less than the full gamut of requested relief, and our inability to compel legislation that addresses emissions beyond the scope of this case—such as those purely in the private sphere or within the control of foreign governments—speaks nothing to our ability to enjoin the government from exercising its discretion in violation of plaintiffs’ constitutional rights.

In sum, resolution of this action requires answers only to scientific questions, not political ones. And plaintiffs have put forth sufficient evidence demonstrating their entitlement to have those questions addressed at trial in a court of law.

As discussed above, the majority reaches the opposite conclusion not by marching purposefully through the Baker factors, which carve out a narrow set of nonjusticiable political cases, but instead by broadly invoking Rucho in a manner that would cull from our dockets any case that presents administrative issues “too difficult for the judiciary to manage.” Maj. Op. at 28. That simply is not the test. Difficult questions are not necessarily political questions and, beyond reaching the wrong conclusion in this case, the majority’s application of Rucho threatens to eviscerate judicial review in a swath of complicated but plainly apolitical contexts.

Rucho’s limitations should be apparent on the face of that opinion. Rucho addresses the political process itself, namely whether the metastasis of partisan politics has unconstitutionally invaded the drawing of political districts within states. Indeed, the Rucho opinion characterizes the issue before it as a request for the Court to reallocate political powerbetweenthemajorparties. Rucho,139S.Ct.at2502, 2507, 2508. Baker factors aside, Rucho surely confronts fundamentally “political” questions in the common sense of the term. Nothing about climate change, however, is inherently political. The majority is correct that redressing climate change will require consideration of scientific, economic, energy, and other policy factors. But that endeavor does not implicate the way we elect representatives, assign governmental powers, or otherwise structure our polity.

Regardless, we do not limit our jurisdiction based on common parlance. Instead, legal and constitutional principles define the ambit of our authority. In the present case, the Baker factors provide the relevant guide and further distinguish Rucho. As noted above, Rucho’s holding that policing partisan gerrymandering is beyond the courts’ competence rests heavily on the first Baker factor, i.e., the textual and historical delegation of electoral-district drawing to state legislatures. The Rucho Court decided it could not discern mathematical standards to navigate a way out of that particular political thicket. It did not, however, hold that mathematical (or scientific) difficulties in creating appropriate standards divest jurisdiction in any context. Such an expansive reading of Rucho would permit the “political question” exception to swallow the rule.

Global warming is certainly an imposing conundrum, but so are diversity in higher education, the intersection between prenatal life and maternal health, the role of religion in civic society, and many other social concerns. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (“[T]he line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear[.]”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (stating that Roe v. Wade, 410 U.S. 113 (1973), involved the “difficult question” of determining the “weight to be given [the] state interest” in light of the “strength of the woman’s [privacy] interest”); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (noting that determining the constitutionality of a large cross’s presence on public land was “difficult because it represents a clash of genuine and important interests”). These issues may not have been considered within the purview of the judicial branch had the Court imported wholesale Rucho’s “manageable standards” analysis even in the absence of Rucho’s inherently political underpinnings. Beyond the outcome of the instant case, I fear that the majority’s holding strikes a powerful blow to our ability to hear important cases of widespread concern.

To be sure, unless there is a constitutional violation, courts should allow the democratic and political processes to perform their functions. And while all would now readily agree that the 91 years between the Emancipation Proclamation and the decision in Brown v. Board was too long, determining when a court must step in to protect fundamental rights is not an exact science. In this case, my colleagues say that time is “never”; I say it is now.

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. 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?

I would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial. I would therefore affirm the district court.

With respect, I dissent.