Wednesday, May 1, 2024

Juliana v. United States and the Passing of a Show Horse

In politics, there’s an old distinction between show horses and work horses. Show horses get attention. Work horses get things done. It’s a useful distinction not just for legislators, but also for legal strategies, and it’s particularly useful on the day Juliana vs. United States got dismissed, most likely for good.

For years, no case has commanded popular attention quite like Juliana. It offers a classic David vs. Goliath tale, with the David part played by sympathetic and idealistic kids. The moral claim at the heart of the case—that the federal government has an obligation to act quickly and decisively on climate change—rings deeply true. Whatever you might think about the plaintiffs’ legal arguments, their moral claims were profound. And while the case never got close to producing a decision on the merits, it did at least survive, and stay in the public eye, for a long time.

But it was always a show horse. The plaintiffs’ strategy was premised on the belief that federal judges would be so inspired by the force of their arguments that the judges would compel major actions by the federal government, even where the political branches had chosen not to act, and all on the basis of novel legal theories. That premise has worked, occasionally, in other countries. Similarly ambitious claims still work here for conservative litigants. But in the United States, the plaintiffs were assuming that the federal judiciary—which is overwhelmingly composed of old, white men—would take up the cause of climate action. And because any bold decision out of the lower courts had high odds of producing a successful cert petition to the US Supreme Court, the plaintiffs also were assuming that a profoundly conservative and anti-environmental court—a court that has enthusiastically sabotaged administrative efforts to respond to climate change—would somehow be persuaded to issue a pathbreaking decision in their favor.

Even a meaningful settlement would have been nearly impossible. Conservative states and industry groups had intervened in the case. There is no chance they would have accepted the sort of settlement the plaintiffs wanted. Any attempt at such a deal also would have gone to the Supreme Court, where, again, the plaintiffs would have been banking on miracles.

Even worse, the downside risk was significant. The Supreme Court might have been eager to get its hands on the case, which it could have used to work all sorts of mischief with a variety of areas of climate law. The thought of a Justice-Alito-composed opinion in Juliana v. United States should be terrifying. The Biden Administration was wise to seek dismissal.

Meanwhile, the workhorses toil on. Just in recent weeks, federal agencies have released new regulations addressing fugitive emissions from oil and gas leasing on public lands and pollutant emissions from coal-fired power plants. They also have proposed a series of sensible reforms designed to improve NEPA reviews and offshore renewable-energy permitting. These are just a few of the examples from the last few weeks. Individually, each of these steps may seem modest, and they fit carefully within existing frameworks of environmental law. But incremental steps can add up to real emissions reductions, and unsuccessful court cases do not. Perhaps, then, the media can now shift some attention to more promising, though not so charismatic, efforts to address the climate crisis.

- Dave Owen

May 1, 2024 | Permalink | Comments (0)