On Wednesday, the 9th Circuit granted a petition for mandamus from the United States and ordered the District Court to dismiss the complaint in Juliana v. United States. The 9th Circuit had previously ordered the case dismissed in 2020 and seemed much surprised that Judge Aiken gave the plaintiffs leave to amend.
We held that the Juliana plaintiffs lack standing to bring their claims and told the district court to dismiss. [The intervening SCOTUS opinion relied on by the plaintiffs] did not change that. The district court is instructed to dismiss the case forthwith for lack of Article III standing, without leave to amend.
Juliana vs United States plaintiffs, Our Children's Trust #youthvgov
I have previously raised the question of whether climate litigation such as Juliana might be like tobacco cases and same-sex cases: “They seem like dead-cert losers and they will continue to seem like losers until, all of a sudden, they are not.”
I still think that it is possible that, at some point, the plaintiffs will start winning these cases. It is also possible that that will happen surprisingly soon. However, there is one difference between climate cases, on the one hand, and tobacco and same-sex marriage cases, on the other. That difference is that the plaintiffs in tobacco and same-sex marriage cases clearly had standing to sue; the only question was the merits of their claims.
In climate cases, standing has, at least to date, posed an insuperable obstacle. That could change. However, it’s worth noting that there is a similarity between part of the argument against standing – that the causal connections are too attenuated – that is very similar to the psychological obstacle to addressing climate change identified by Daniel Kahneman, Nobel Prize winner:
Climate change is really the kind of threat … that we as humans have not evolved to cope with. It's too distant. It's too remote.
So, climate litigation may have an impact at some point, but I’m more skeptical about that now than I used to be.
