Fed Soc teleforum on ‘the right to a better climate’

December 20, 2017 | By DAMIEN SCHIFF

On Friday, I participated in a teleforum hosted by the Federalist Society on the Juliana case, currently pending in the Ninth Circuit Court of Appeals. The case is a challenge brought by several youth and an environmental organization challenging the federal government’s alleged failure to regulate greenhouse gas emissions in a manner adequate to protect human life. The lawsuit is interesting for two reasons:  first, it advances novel theories of substantive due process and the public trust doctrine that would protect a right to a life-sustaining climate; and second, a district court (remarkably, in my view) has at least initially approved the theories.

Last week’s teleforum focused principally on the recent oral argument before the Ninth Circuit addressing the federal government’s mandamus petition, which requests that the appellate court put an immediate stop to the litigation. The feds are concerned that if the case goes forward to trial, an inevitable interbranch constitutional conflict will arise. Many thanks to my co-panelist Professor James May of Widener U. Delaware Law School and moderator Andrew Varcoe of Boyden Gray & Assocs. for a stirring discussion.