Juliana v. United States: The Evolving Doctrine of Standing

Background:

The Juliana v. United States case was brought by 21 children against the United States government over the failures of the United States in adequately addressing climate change. The lawsuit alleges that the United States, in allowing the production of fossil fuels to continue, violates the life, liberty, and property interests of the children. The plaintiffs are seeking a concrete plan by the United States government in halting and reversing the effects of climate change. So far, the Ninth Circuit Court of Appeals has denied the Trump administration’s writ of mandamus and allowed the case to go to trial. Trial is set for October 29, 2018 in Oregon. [Thomson, Amy. “These Teens Just Won a Victory Over the Trump Administration in Court.” Mother Jones, 13 Apr. 2018, http://www.motherjones.com/environment/2018/04/these-teens-just-won-a-victory-over-the-trump-administration-in-court/.%5D

Controversy:

Climate change is a pressing controversy with real consequences. As resources continue to dwindle, and coastlines continue to be inundated, people will see their qualities of life decrease. This was the case with the 21 plaintiffs, who witnessed the effects of climate change first-hand.

Analysis/Evaluation:

The case was filed in the last few days of the Obama administration, and the Obama administration admitted several of the allegations set forth in the pleadings. This seems to be an effective strategy in locking in the subsequent administration into the case.

Although there is a trial date set, the plaintiffs may run into more issues in the case. Plaintiffs must have legal standing to bring suit. Standing requires injury in fact, causation, and redressability by the courts. The injury-in-fact must be actual and imminent, and not a generalized grievance. The injury-in-fact must also be particularized. In the recent past, the Supreme Court has allowed states to bring suit against the Environmental Protection Agency (EPA) for potential climate change harms. In Massachusetts v. EPA, injury in fact was found when sea-level rise threatened to inundate the coastline of Massachusetts. A causal link to EPA action was found based on EPA’s refusal to regulate vehicle carbon emissions, and the court found that any decrease to emission will result in the decrease to the effects of climate change.

With the continuous evolution of the doctrine of standing,  however, it is unclear how the Juliana case will come out. While injury-in-fact imposes several requirements, there is no need for an actual legal claim (in cases such as Sierra Club v. Morton, the potential effect on one’s right to enjoy aesthetics was enough.) Here, the children, in having their homes flooded, will likely satisfy the injury-in-fact requirement.

However, the children’s injuries may not be particularized since everyone on earth is facing the same effects of climate change. This is a global problem since many people will be affected. Further, a causal connection is also hard to show: The United States is not the only country in the world that allows fossil fuel usage. To argue that the United States government brought on the plaintiff’s injuries may be a stretch considering other countries’ carbon emissions. However, this was allowed in Massachusetts v. EPA when the Supreme Court determined that there was a connection between United States carbon dioxide emissions and the likely inundation of state lands. It is important to note that in the case, Massachusetts was a quasi-sovereign. Therefore, the Court may have viewed the situation differently than in this case in which the plaintiffs are children and not a quasi-sovereign.

Finally, the issue of redressability will be difficult for the plaintiff to overcome.  There is debate over whether climate change is reversible once atmospheric carbon dioxide exceeds 400ppm. Seeing as that level has been exceeded, it is uncertain whether courts can rectify the situation. Further, this looks like a global problem as well as a political issue. Courts have been reluctant in finding redressability when the problems are either global, such that everyone will be affected, or when the problem is of a political controversy. With the current split between the political parties, climate change may look like a political problem. If the plaintiffs were suing for damages, this would be simpler. However, even if the court compels the government to act, it is unlikely that climate change could be reversed in these children’s lifetimes. On the other hand, it is unclear whether the Court will choose to avoid finding redressability. The district court judge has been favorably inclined and may make a finding for standing based on the importance of the case.

Conclusion:

Although the plaintiffs may have won themselves a trial date, it is still an uphill battle from here. It is unclear whether the plaintiffs will achieve the requisite standing necessary to bring suit, given past rulings. However, if the issue of standing is appealed to the Supreme Court and if the Supreme Court decides to distinguish this case from Massachusetts v. EPA, it may be that any finding of standing at the lower courts will be overturned.

Cynthia Yuan

Fracking: How the Disclosure of Fracking Documents Affects Reliance on Natural Gas

By Cynthia Yuan and Shannon Cullen

Background

Not all fossil fuels are equal in the equation for carbon emissions. Natural gas continues to be a source of energy that is deemed “cleaner” than coal, with lower carbon emissions. One type of natural gas extraction is hydraulic fracturing (“fracking”), which has become more prevalent with modern-day technology. Fracking describes the process in which companies extract natural gas embedded in shale, a type of fine-grained sedimentary rock. Drillers inject a mixture of water, sand, and chemicals into the shale formation to create fissures for the gas to come up. Fracking has become so lucrative that companies are going to extreme lengths to protect their interests. Imaginative strategies companies implement now includes filing for copyright protections for fracking documents. However, companies may not be very successful.

Controversy

Fracking has been a controversy among environmental groups and the general public due to a variety of reasons, such as chemicals leeching into the groundwater or earthquakes occurring when active faults are drilled.  However, the main controversy is whether disclosures of certain documents lowers the bar for other companies to enter the fracking industry.

In the case of Kern River Gas Transmission Co. v. Coastal Corp., Kern River sought Commission approval to construct a pipeline from Southwestern Wyoming, through Utah and Nevada, to Southern California. Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1460 (5th Cir. 1990). During this process, Kern River disclosed topological maps it had prepared at its expense. A competitor then got ahold of these maps. In an unusual move, Kern River registered the maps with the Copyright office and sued for protections under copyright law. The Fifth Circuit held that the maps were not protectable under the Copyright Act. As a result, competitors freely obtained information pertaining to the locations of natural gas as well as the proposed pipeline route.

This ruling has the potential for lowering the bar for companies to enter the industry, since companies would not need to bear the expense of creating its own maps. Critics fear that with the entry lowered, more companies may enter the industry, and as a result, more fracking may occur. More competition will also lower natural gas prices, increasing overall natural gas dependency.

Analysis/Evaluation

Although there is an argument that not protecting fracking maps will result in more companies entering the industry and result in more fracking, the opposite may in fact be true. Allowing the information to be made public may alert the public about shale gas under their properties. Property owners will then be warned and could take measures such as hold out against sales by gas companies or move. Gas companies could then encounter more difficulty and greater cost from homeowner actions. More importantly, the Copyright Act was not intended to serve as an environmental regulatory tool, and in applying the relevant law, courts should decide whether something is copyrightable without speculating about potential market impacts. Companies should also recognize that copyright law is not an avenue for protecting information.

Conclusion

With the technology today, fracking has become so lucrative that companies are resorting to unusual strategies to preserve their wealth. It is important to recognize that controversial cases do not always result in poor environmental decisions. However, in the absence of more sustainable energy options, companies will continue to anger critics on both sides of the environmental debate.