On Monday morning, the
Supreme Court denied certiorari in
Juliana v. United States. The cert. denial leaves in place the 9th Circuit Court of Appeals decision that ordered the case dismissed for lack of standing. At least for now, this seems to mark the death knell of this kind of climate litigation in the United States. While the denial of cert. is not precedential, it’s hard to see any other appeals court reaching a different decision.
In fact, the denial of cert. may not be a bad thing from the climate perspective. After the 9th Circuit decision, the trade press reported widely that numerous experienced environmental litigators were pretty much pleading with plaintiffs’ counsel not to appeal further, because they did not want to give SCOTUS an opportunity to take a hatchet to standing jurisprudence. They are now presumably breathing a sigh of relief.
Note, however, that I described this as the death knell only for “this kind of climate litigation.” Claims against the United States for failure to take affirmative action to mitigate climate change are not likely to make much headway, at least for now. However, state claims for damages under state law, at least conceptually stand on different footing. In fact, there are conservatives who oppose EPA’s move to withdraw the greenhouse gas endangerment finding precisely because it will undermine arguments that state law damage actions are preempted by the Clean Air Act.
I am sorry to report that I don’t share the conservatives’ concern, because I think that this SCOTUS will in any case find a way to eliminate even purely state law damage claims. However, hope springs eternal and I’ve been wrong before. The state law claims are different from the claims in Juliana, and until SCOTUS puts the proverbial stake in their heart, state court plaintiffs may – and almost certainly will – continue to pursue them.
