Can A National Cataclysm Be Enjoined?

A bunch of kids sued to prevent the end of the world as we know it. And did pretty well.

In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that 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.

Accepting the premise that climate change is real and will “hasten an environmental apocalypse” is a big deal for a circuit court, even if it is the Ninth. Indeed, the plaintiffs surmounted the many hurdles before them, save one.

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.

This bold request for relief was too bold for the majority of this panel of the “least dangerous branch,” but not for District Judge Josephine Staton in dissent.

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.

That’s kind of a big “mere” fact, but as Judge Staton goes on to argue, such “mere” facts haven’t stopped courts from acting in the past.

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 statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent.

Can anyone argue that the Nation’s demise isn’t worthy of relief? And so what if the remedy proves inadequate to the task. It’s something, and (syllogism kicks in) we must do something.

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.

Judge Staton’s call to arms is passionate, bold and, yes, reminiscent of some of the greatest historic acts of the judiciary, like Brown v. Board of Ed. But does the “fact” that the majority “appears ready to yield even if those branches walk the Nation over a cliff” give rise to a court “ordering” a shift in national policy, writ large, and the millions of minute details that would be required to effectuate it, even if the “it” at stake could be agreed upon?

The sky has been falling for quite a while now. Everybody says so, even though there’s a bit of disagreement around as to how fast, how hard and how to keep it up there. Are judges the people to decide it and, assuming so, to fix it?

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.

If the Constitution protects our interest in survival, both as individuals and as a nation, can the court do less than remedy a violation of that constitutional right? If we are on the edge of a cliff, about to step off into irreversible cataclysm, can a court beg off and pass the problem to the political branch, knowing that delay will make a political remedy futile, if there’s a remedy to come at all?

But what relief would the judge order? Enjoin stations from selling gas, power plants from providing electricity, you from driving your care, bovines from emitting flatulence? It’s certainly doable for a court to prohibit gravity, as it keeps the marginalized down, but it’s still not going to happen.

That there is a catastrophic problem happening before our eyes may well be true, but the judicial branch is not the place to cure all ills, no matter how close to the edge of the cliff we may be. It’s not the “least dangerous branch” only because it has no army to enforce its orders, but because it’s not a policy making branch just because the political branches are incapable of doing their jobs, or doing them well. Not even for the children. Not even on the eve of destruction. Not even when bold words that fill the hearts of the passionate with hope that at least one branch of government has the will to save a Nation from cataclysm.

17 thoughts on “Can A National Cataclysm Be Enjoined?

  1. Skink

    The opinions are interesting in the sense that a zillion words were chewed to delay saying “political question.” The dissent essentially claims evading the prohibition is worthy because it might cause the government to do something, even though the court doesn’t have the fundamental power to enter an order. That’s just activism.

    1. SHG Post author

      If it’s the end of the world unless they do something, then they have to do something. And you worry about activism, you old man.

  2. Richard Kopf


    I “reluctantly” conclude that three federal judges from the Ninth Circuit lack the power to make climate change policy for 330,149,796 people who reside in the U.S. This is true even if the three each drive a
    2020 Tesla Model 3.

    Truly, how and why this case was taken seriously (63 pages) is a mystery. Perhaps the ever present smog in the Ninth Circuit (save Alaska, for the time being) plays a part. Note also that case came from Oregon.

    Just imagine the large “carbon footprint” that was created by this nonsense–look at the number of parties, the legions of lawyers, etc. Relatedly, this case also proves that “irony” no longer has any meaning in large swaths of this vast country.

    All the best.


    1. SHG Post author

      If I was the attorney for the children, given the opinion, I might replead with a far more modest but strategic prayer for relief and see how they weasel their way out of the rest of the opinion.

    2. Matthew Scott Wideman

      I felt the same way. How many trials and hearings were delayed to aknowlege this complete nonsense. Not to mention the wasted tax money.

      I read some of the comments on the various internet news sites that reported on this case. People are completely delusional.

      I know that I would be the best person to set policy in the US….if only I could win my law suit against the world in the Eastern District of Missouri….

  3. Boffin

    Related, last December the Supreme Court of the Netherlands decided that they do have such power, and ordered that the government decrease emissions by 25 percent from 1990 levels by the end of 2020!

  4. losingtrader

    “It’s not the “least dangerous branch” only because it has no army to enforce its orders, but because it’s not a policy making branch just because the political branches are incapable of doing their jobs, or doing them well”

    The Federal Reserve seems to have taken over both economic and fiscal policy and they don’t even have marshals. Granted, the leg could take away their nominal independence, but I don’t buy the judiciary is the least important branch .
    (Sorry RGK. If you really feel this is true, you’d have given up judging a long time. )

    PS> The Apple keeps falling upwards, so maybe this climate thing is affecting gravity

    1. Richard Kopf

      Dear LT,

      I’m not far from giving up. The more my woke colleagues decide to expand the function of the federal courts the more I despair. At some point, it will be too much for me. I have to wait, however, for those who depend upon me for their jobs. Thus, I will continue to do nothing of importance, but do it very well.

      All the best.


  5. ShallMustMay

    Family Court. Juvenile Court. Business Court. Bankruptcy Court. Drug Court. Veterans Court. Each within their own jurisdiction and rules of evidence. Alas – Climate Court. I see what was done.

  6. John Barleycorn

    Damn, and here I thought the word count via 2020 juxtaposition quandaries would lean toward
    you finally absorbing the grains of that paneling you surround yourself with at SJ Headquarters and just going off, a few hundred words at a time, in-between a few “snips”.

    Rain on plumbum is a very unique sound. Yankee gutter trim! You still BBQ in the rain and snow right?

    Could be time to take everything off the walls and dust? Just saying…. but process alone usually brings a decent sneeze or two. And putting everything “back in its place” is often unexpectedly less back, let alone place.

    P.S. Speaking of which…in your experience how often do Judges do the same with their chambers? Spring is coming, isn’t necessary gonna be clean. You might need “boots” before you freak out and put on waders when the grandchildren arrive. They tend to come unexpectedly regardless of anticipation as well.

    Speak esteemed one!… or buy real tractor already! Fuck Tier 4 diesel bring back the prairie?!

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