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The Supreme Court and Administrative Law, 2018-2019 Session

As the ultimate interpreter of the US Constitution, the Supreme Court of the United States (SCOTUS) sets to most fundamental limits and requirements for administrative action. The Court also is the final word on who gets standing and what rules lower courts should apply when judging administrative behavior.

The articles below discuss the 2018-2019 SCOTUS decisions affecting the administrative process. The first is from an environmental law website, Greenwire. This article by Ellen Gilmer notes that the court has not yet swept away the principles of court deference to agency factual judgements. Two precedents are notable for establishing this deference. You already should be aware of the Chevron(1984) deference, where SCOTUS endorses the basic concept that courts should defer to agency interpretations of statutes unless they are unreasonable. This idea was expended to endorse that courts defer to agency interpretations of existing administrative rules as well in the Auer(1997) case.

Conservatives who fear or oppose what they call the “administrative state”(a runaway uncontrolled bureaucracy) hope that the addition of Gorsuch and Kavanaugh to SCOTUS would lead to the overturn of this deference. As the Kisor v. Wilkie(2020) case shows, the court is not quite ready to go so far, yet. So deference to agency expertise remains a basic court position, for now, but the agency can only expect deference under more limited conditions. The court also did not take on the question of when Congress has given too much discretionary power to agencies (the “non-delegation doctrine”) when it had the chance. The court also did not accept a Trump administration effort to include a citizenship question on the 2020 census because it was promoted on false pretenses. This could be a notable precedent.

SCOTUS sent the standing case regarding the Eugene youth’s case contending the United States was negligent in responding to climate change, Juliana v United States, back to the Ninth Circuit for re-consideration. As the final article below indicates, the Ninth Circuit denied standing in the case, arguing that while there is injury, and the injury is traceable to governmental action or inaction, there is no redressability. Basically the courts had no way to correct the injury and therefore could provide no relief to the plaintiffs. The court basically declared this was an issue that required a political solution.

MH, April 2020

SUPREME COURT

Action-packed term fails to curb 'administrative state'

Ellen M. Gilmer, E&E News reporter Greenwire: Tuesday, July 2, 2019

The Supreme Court in Washington, D.C. Joe Ravi/Wikimedia Commons

Environmental implications lurked below the surface of a slew of Supreme Court disputes this term, making it one of the most consequential in years for court watchers tracking those issues. Big cases involving subjects as varied as sex offender registration, old burial grounds and veterans' benefits teed up critical administrative law and property rights questions for the justices. Those decisions will ultimately sway litigation related to federal environmental rules, local-level regulations and other government actions.

Conservative lawyers had hoped the high court would seize several opportunities to rein in the network of unelected but powerful federal agency officials they've dubbed the "administrative state." Their campaign has been growing for years and seemed poised for swift successes after the addition of Justice Brett Kavanaugh to the court. "But what's really interesting is it's still falling short," Columbia Law School professor Gillian Metzger said at an American Constitution Society event last week. "The victories that conservatives really expected to get this term did not come through."

Still, right-leaning organizations were quick to declare victory in cases where the Supreme Court appeared to at least open the door to scrapping a contentious deference doctrine or halting broad delegations of power from Congress to the executive branch. "The huge difference is [retired Justice Anthony] Kennedy was replaced by Kavanaugh so now we have clearly a Supreme Court majority that's highly skeptical of environmental regulation," University of Maryland law professor Robert Percival said. "But they indicated for now at least they're going to be content with just incremental change."

The high court also had a chance this term to decide the fate of the so-called kids' climate case — an unprecedented lawsuit that will likely make its way to the justices yet again.

Finally, they handled a series of one-off environmental and natural resources cases since the term began last October, weighing in on tribal hunting rights, Alaska public lands, uranium mining and a lonely frog in the South. "If this were a baseball game, we'd say environmental law had a lot of RBIs in this term though no grand slams," said Baker Botts LLP attorney Jeff Wood, formerly the acting head of the Justice Department's environment division under President Trump.

The final stretch of the Supreme Court's session, which ended last week, featured major news in administrative law. "This was a big term for ad law," Metzger said last week. "Ad law professors have been very happy and tweeting away nonstop."

Major litigation over energy and environmental issues often turns on procedural questions controlled by administrative law doctrines, making developments in that field particularly important to environmental lawyers.

In a one-two punch, the justices delivered two highly anticipated decisions that disappointed conservative critics of federal agencies. First, in Gundy v. United States, the court declined to invoke the long-dormant "nondelegation doctrine" to strike down a federal law related to sex offender registration. Small-government advocates say overly broad delegations violate the separation of powers.

Less than a week later, the court let down conservatives again in Kisor v. Wilkie, refusing to overturn the Auer standard, a contentious doctrine that directs judges to defer to agency interpretations of their own rules. Electric utilities, the mining industry, agriculture groups and others have called for Auer's demise.

But both cases came with a silver lining for those critics.

In Gundy, the court's liberal wing voted to uphold the law at issue but did so with the support of Justice Samuel Alito, who indicated he would be open to revisiting the nondelegation doctrine in a future case. Three other conservatives on the court said they would have invoked nondelegation, which hasn't been used successfully since the 1930s ( Greenwire , June 20).

Kavanaugh didn't participate in the case. But if he feels similarly to his conservative colleagues, the Supreme Court could have the five votes needed to revive the doctrine in the future — a move that could breathe new life into challenges against environmental laws and other broad statutes. Mark Chenoweth, head of the New Civil Liberties Alliance, said in a recent Federalist Society teleforum that the "bat signal is out" for other nondelegation cases to bring to the court.

Litigants have previously raised the doctrine in challenges to EPA air regulations, the Federal Energy Regulatory Commission's eminent domain process for pipelines and the president's power to designate national monuments under the Antiquities Act. "At a time when Congress is gridlocked on issues of environmental law, striking down environmental statutes on nondelegation grounds would really potentially cripple the administrative state," Percival said.

In Kisor, the justices declined to grant conservatives' wish of eliminating the agency deference standard. But Justice Elena Kagan's opinion, joined by the court's liberal wing and, in part, by Chief Justice John Roberts, reinforces limits on the doctrine and sets out a five-part test for when judges should defer to agencies ( Greenwire , June 26).

That test is a high bar for agencies to clear, said Wood, the former DOJ official. "EPA and other agencies shouldn't count on receiving deference to their own regulatory interpretations, at least not often," he said. "Following Kisor, agency deference in these contexts is more the exception than the rule." That dynamic could affect future litigation over EPA's Affordable Clean Energy rule and its Waters of the U.S. regulation, he added.

The Supreme Court decided a third important administrative law case on its last day of opinions, ruling in Department of Commerce v. New York that the Trump administration's stated reasons for adding a citizenship question to the 2020 census were a pretext ( Greenwire , June 27).

The case is expected to reverberate in lower courts, prompting litigants to challenge other government justifications as false and therefore unlawful. But University of Chicago law professor Jennifer Nou said it remains unclear just how often judges will agree to look beyond the official administrative record in a case to investigate alleged false motives, as was done in the census case.

Frogs and property rights

The biggest direct environmental question on the Supreme Court's docket this term, Weyerhaeuser Co. v. Fish and Wildlife Service, turned out to be fairly underwhelming.

On the first day of oral arguments last October, the justices heard about the plight of the dusky gopher frog and the Louisiana landowners whose property was affected by habitat protections for the frog.

Experts worried the court would use the case to issue a broad pronouncement on the government's Endangered Species Act power. Instead, it issued a narrow ruling in November directing lower courts to weigh the definition of habitat before reviewing a government designation of "critical habitat." The Fish and Wildlife Service is now reconsidering the habitat protections.

"It's technically a loss, but it's so narrow that it's a punt," Center for Biological Diversity attorney Collette Adkins said at the time.

A separate holding of the decision, that the designation was subject to judicial review, had broader reach ( Greenwire , Dec. 3, 2018).

Property rights advocates scored a more decisive win in Knick v. Township of Scott last month when the high court overturned a precedent that made it harder for landowners to go to federal court to challenge alleged property takings by local governments ( Greenwire , June 21).

The case, which involved Pennsylvania landowner Rose Mary Knick's challenge to a township ordinance requiring public access to burial grounds on private lands, could facilitate other legal attacks on local environmental rules and zoning plans.

"It will have implications stretching far beyond Knick's farm in Pennsylvania, giving property owners nationwide a fighting chance to challenge government overreach and abuse," Pacific Legal Foundation attorney Christina Martin said in an op-ed in The Hill last week.

Kids vs. climate change

Plaintiffs in the kids' climate case stand in front of the Supreme Court. Robin Loznak/Our Children's Trust

The justices did have a chance to handle a climate case this term, albeit briefly.

The historic kids' climate case, formally known as Juliana v. United States, made its way to the high court via an unusual emergency motion by the Trump administration. Government lawyers asked the Supreme Court to stop the case from going to trial in a federal district court in Oregon. Chief Justice Roberts temporarily halted the proceedings, but the court ultimately decided against intervening — instead issuing a five-page opinion recommending that the administration seek relief at the 9th U.S. Circuit Court of Appeals ( Climatewire , Nov. 5, 2018).

The decision was a short-lived victory for the 21 young plaintiffs and their lawyers at Our Children's Trust, as the trial ultimately was put off to allow for a 9th Circuit appeal. A decision from the appellate court is still pending. "If the 9th Circuit does the unexpected and allows the Juliana climate trial to proceed, the Supreme Court will likely have yet another opportunity to take up the case again," Wood said. "I think most would expect the court to be more emphatic the next time in its skepticism of the plaintiffs' theories and the need for a trial."

Vermont Law School professor Pat Parenteau warned that another trip to the high court could be a serious threat for environmental litigation if the 9th Circuit ultimately issues a decision focused on whether the kids have standing to sue.

"God forbid the 9th Circuit dismisses Juliana on a very broad standing decision and then Our Children's Trust tries to take it up," he said. "And God help us if four of the conservative justices say, well, now is the time once and for all not just to end climate change standing, which has been problematic anyway, but I would not be surprised if this court would look for restoring some of those really high bars."

Mining, hunting and gas taxes

This term also featured a variety of environment-related cases with narrower impacts.

In Virginia Uranium Inc. v. Warren, for example, the court issued a split decision finding federal law does not preempt Virginia's longtime ban on uranium mining. The ruling was a clear win for the state, but experts questioned whether it would have much impact on preemption issues in other contexts ( Greenwire , June 17).

Likewise in Sturgeon v. Frost, the court decided an unusual case involving whether a moose hunter could operate a hovercraft on a river within a national preserve in Alaska. The justices sided with the hunter, finding his access to the river trumped the National Park Service's desire to regulate activity on it. The ruling relied heavily on a federal law unique to Alaska public lands ( Greenwire , March 26).

The court again sided with a hunter in Herrera v. Wyoming, ruling the state had overstepped by criminally prosecuting a Crow Tribe member for shooting elk within a national forest ( Greenwire , May 20). In another tribal case, the court blocked Washington state from collecting a gas tax from a Yakama Nation business ( Greenwire , March 19). Justice Neil Gorsuch sided with the court's liberal wing in both cases.

Finally, the court ruled that California employment protections do not apply to offshore oil workers on the outer continental shelf ( Energywire , June 11), that an international organization may not be immune to legal challenges related to a coal-fired power plant in India ( Greenwire , Feb. 27) and that a government-owned electric utility may be liable for injuries caused by power line maintenance ( Energywire , April 30).

Beveridge & Diamond attorney John Cruden, who led DOJ's environment division under President Obama, said many of those cases were "of interest and important, but probably not nearly as important" as a case slated for the high court's next term: County of Maui v. Hawai'i Wildlife Fund, which considers the appropriate scope of the Clean Water Act.

The justices are also set to hear a Superfund case next term that could have broad impacts on environmental cleanups nationwide ( Greenwire , June 20).

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“Divided Supreme Court Cuts Back Doctrine of Judicial Auer Deference to Agency Interpretations of Its Own Ambiguous Rules”. The National Law Review (Tuesday, July 2, 2019)

https://www.natlawreview.com/article/divided-supreme-court-cuts-back-doctrine-judicial-auer-deference-to-agency

On June 26, 2019, a divided Supreme Court in Kisor v. Wilkie issued one of its most important administrative law decisions in decades. The Supreme Court decided to uphold, but dramatically narrow, the doctrine of judicial deference to agency regulations, known as Auer deference, but at the same time unanimously found for petitioner James Kisor in overturning the Federal Circuit’s affirmance of the Board of Veteran’s Appeals decision to deny part of his claim for Vietnam War disability benefits.  We discuss below the majority and minority opinions on Auer deference, the narrow unanimous holding of reversal, and the importance of this decision.

Majority Opinion Upholding Auer Deference

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, wrote the central ruling, and Chief Justice Roberts filed a concurring opinion.  The majority opinion was based on stare decisis and upheld the principle that courts in certain instances are to defer to reasonable federal agency interpretations of their own ambiguous regulations.  This deference doctrine is based on Auer v. Robbins, 519 U.S. 452 (1997) (“Auer”) (holding agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation”) and its predecessor Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945) (“Seminole Rock”), and is known simply as Auer deference.  In this blog post, we will refer to this part of the opinion (Section III.A) as the "Auer Deference Opinion." While this part of the majority opinion technically upheld Auer and Seminole Rock, it substantially narrowed it in such a way that Justice Gorsuch, writing for the minority, characterized Auer as “maimed and enfeebled—in truth, zombified.”

The judicial narrowing of Auer deference in Kisor comes through a series of gating principles or factors that must be applied before courts are to consider applying deference principles.

First, courts must determine that the regulation in question is genuinely ambiguous by “exhausting all the ‘traditional tools’ of construction.” 

Second, courts must determine that the interpretation is reasonable. 

Third, courts must evaluate “whether the character and context of the agency interpretation entitles it to controlling weight.”  The interpretation is entitled to controlling weight if:

It is the “authoritative” or “official position” of the agency that “emanate[s]” from “actors . . . understood to make authoritative policy in the relevant context”;

The agency’s interpretation implicates its substantive expertise; and

The agency’s interpretation reflects “fair and considered judgment,” meaning that (1) it is not a position adopted as a “convenient litigating position,” and (2) it is not a new interpretation that would result in “unfair surprise” to regulated parties.

Justice Kagan provides the following summary of these gating factors:

“When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase ‘when it applies’ is important—because it often doesn’t. As described above, this Court has cabined Auer’s scope in varied and critical ways—and in exactly that measure, has maintained a strong judicial role in interpreting rules. What emerges is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear.” 

Chief Justice Roberts cast the deciding vote with the liberal members of the Court upholding Auer deference and agreed with the majority’s gating principles.  He wrote, however, “to suggest that the distance between the majority and Justice Gorsuch is not as great as it may initially appear.”  Notably, he also made clear his view that the issue decided here is distinct from the form of deference found in U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (“Chevron”) concerning deference to an agency’s interpretation of a statute, and that “the Court’s decision today [does not] touch upon” Chevron deference.

Dissenting Auer Deference Opinions 

Justice Gorsuch wrote the lead dissenting opinion to the Auer Deference Opinion, joined by Justice Thomas; Justices Kavanaugh and Alito joined for various parts and concurred with the holding to remand, as further discussion below. Justice Gorsuch concluded that Auer should be overturned because its deference doctrine results in bias towards the government.  Auer requires deference to the agency even when the agency’s interpretation does not represent the “best and fairest reading.”  Gorsuch also criticized the majority’s reliance on stare decisis, which is the judicial principle favoring past precedents.   Fundamental to the minority opinion is that Auer deference provides “excuses for judges to abdicate their job of interpreting the law.”

In support of his opinion, Justice Gorsuch argued that Auer deference doctrine is essentially a historical accident and a doctrine of uncertain scope and application and cited one of many law journal articles analyzing Auer deference.  The minority criticized the Court in the Auer Deference Opinion for never squaring Auer with the principles of the Administrative Procedures Act (see, e.g. APA §706 which requires reviewing courts to “decide all relevant questions of law” and “set aside agency action . . . found to be . . . not in accordance with law”).   In addition, the minority argued that Auer is incompatible with the Constitution because it requires courts to share judicial power with the Executive Branch rather than to retain judicial power as assigned by Article III, § 1 of the Constitution.   Finally, Justice Gorsuch strongly criticized (in a section not joined by Justice Alito) the majority for upholding Auer based on stare decisis.  Justice Gorsuch argued that, unlike precedential decisions regarding a single statute or regulation, stare decisis here would result in Auer’s interpretive methodology applying to every future dispute over the meaning of every regulation. 

Justice Kavanaugh wrote a brief concurrence, joined in part by Justice Alito, noting that “if a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation of the regulation at issue,” and therefore deference won’t be required. 

Unanimous Judgment for Reversal 

The Court unanimously agreed that the court below should reconsider its decision.  Justice Kagan reasoned that the Federal Circuit “jumped the gun” in upholding the Board of Veteran’s Appeals’ interpretation of the Veteran’s Administration (“VA”) regulation concerning “relevant” records.  Ambiguity did not arise, the Court reasoned, simply because both parties insisted that the plain regulatory language supported their interpretation and neither struck the Federal Circuit as unreasonable.  “Rather, the court must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”  The Federal Circuit also failed to consider whether Congress would intend that the VA’s interpretation receive deference.  The Court vacated and remanded for further proceedings.   

Analysis

For years, conservative legal scholars have looked for ways to cut into what has become known as the “administrative state.”  High on the list has been efforts to repeal both Auer and Chevron deference.  As we wrote here in 2015 in Developments in Judicial Deference of Administrative Agency Actions,  Justices Scalia, Thomas and Alito wrote separate concurrences in Perez v. Mortgage Bankers Association (“Mortgage Banker”) seeking to revisit Seminole Rock and Justice Scalia’s own decision in Auer. Petitioner Kisor asked the court to do exactly that in this case.

The importance of Kisor can be seen in numerous amicus briefs and law review articles cited by both sides.  All told, there were almost 40 amicus briefs filed, with most on behalf of Petitioner.  Authors of the briefs included leading business and conservative legal groups as the Chamber of Commerce, Business Roundtable, Washington Legal Foundation, Center for Constitutional Jurisprudence, Cato Institute, several Republican-led states, and many organizations representing regulated industries, but surprisingly no health care organizations. 

Justice Gorsuch bluntly squared the issue in his minority opinion to the Auer Deference Opinion: “In disputes involving the relationship between the government and the people, Auer requires judges to accept an executive agency’s interpretation of its own regulations even where that interpretation doesn’t represent the best or fairest reading.”  In the minority's view, the level of deference hostility goes as far as raising Constitutional Separation of Powers concerns, which was hardly discussed in the Auer Deference Opinion majority.

The formal upholding of Auer deference in many respects appears to be a pyrrhic victory as the majority has imposed numerous analytical gating principles that now must be applied before courts grant deference to an agency.   With so many of these principles subject to their own future judicial interpretations, the Kisor Court may have invited haphazard, inconsistent application.  Putting aside the potential for wide-ranging application of “traditional tools” of statutory construction in the determination whether a regulation is “genuinely ambiguous,” potentially ripe for varying interpretations is the stated factor of whether “[s]ome interpretive issues may fall more naturally into a judge’s  bailiwick” than into the area of the agency’s expertise. 

Another factor given by the Court may wind up bending historic principles is how to decide the legitimacy of an agency’s change in position.  Long-standing jurisprudence holds that an agency is free to change its official position as long as it reasonably explains its change.  But Kisor casts a cloud. One of its gating principles is that a regulation may not create “unfair surprise” as when an agency changes its position, for example. In such situations, the Court suggests that deference is not warranted.  This part of Kisor may lead to disappointment by conservatives, who are now in power and seeking to overturn years of “liberal” rulemaking related to environmental and health and safety laws and who face a judiciary skeptical of applying deference to changing agency interpretations.

Finally, we note that Chief Justice Roberts properly pointed out that Auer deference issues are very different than those involved in Chevron deference.  Chevron requires courts to give deference to agency interpretations of charging statutes.  As discussed in the majority Auer Deference Opinion, in which the Chief Justice joined, it is logical to defer to the authors of the regulation when a matter is subject to an agency’s areas of expertise.  But that same logic does not necessarily apply to an agency’s regulation interpreting a statute.  Likely for this reason, Chief Justice Roberts set an important marker that the majority’s Auer deference decision does not “touch upon” Chevron deference.  It appears that he may be inviting a similar challenge to Chevron, which has been one of the highest goals of the conservative legal movement in challenging the “administrative state.”

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9th Circuit Decision regarding Standing for Climate Change case: the Juliana case.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KELSEY CASCADIA ROSE JULIANA; XIUHTEZCATL TONATIUH M., through his Guardian Tamara Roske- Martinez; ALEXANDER LOZNAK; JACOB LEBEL; ZEALAND B., through his Guardian Kimberly Pash-Bell; AVERY M., through her Guardian Holly McRae; SAHARAV., through her Guardian Toa Aguilar; KIRAN ISAAC OOMMEN;TIA MARIE HATTON; ISAAC V ., through his Guardian Pamela Vergun; MIKO V., through her Guardian Pamel Vergun; HAZEL V., through her Guardian Margo Van Ummerson; SOPHIE K., through her Guardian Dr. James Hansen; JAIME B., through her Guardian Jamescita Peshlakai; JOURNEY Z., through his Guardian Erika Schneider; VICTORIA B., through her Guardian Daisy Calderon; NATHANIEL B., through his Guardian Sharon Baring; AJI P., through his Guardian Helaina Piper; LEVI D., through his Guardian Leigh-Ann Draheim; JAYDEN F., through her Guardian Cherri Foytlin; NICHOLASV.,throughhis Guardian Marie Venner; EARTH GUARDIANS, a

No. 18-36082

D.C. No. 6:15-cv-01517- AA

OPINION

nonprofit organization; FUTURE GENERATIONS, through their Guardian Dr. James Hansen,

Plaintiffs-Appellees,

v.

UNITEDSTATESOF AMERICA;MARY B. NEUMAYR, in her capacity as Chairman of Council on Environmental Quality; MICK MULVANEY, in his official capacity as Director of the Office of Management and the Budget; KELVIN K. DROEGEMEIR, in his official capacity as Director of the Office of Science and Technology Policy; DAN BROUILLETTE, in his official capacity as Secretary of Energy; U.S. DEPARTMENT OF THE INTERIOR;DAVIDL.BERNHARDT, in his official capacity as Secretary of Interior; U.S. DEPARTMENT OF TRANSPORTATION; ELAINE L. CHAO, in her official capacity as Secretary of Transportation; UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY PERDUE, in his official capacity as Secretary of Agriculture; UNITED STATES DEPARTMENT OF COMMERCE;WILBUR ROSS, in his official capacity as Secretary of Commerce; UNITEDSTATES DEPARTMENT OF DEFENSE; MARK T.

JULIANA V. UNITED STATES 3

ESPER, in his official capacity as Secretary of Defense; UNITED STATES DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; ANDREW WHEELER, in his official capacity as Administrator of the EPA; OFFICE OF THE PRESIDENT OF THEUNITEDSTATES;U.S. ENVIRONMENTAL PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY; DONALD J. TRUMP, in his official capacity as President of the

United States,Defendants-Appellants.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted June 4, 2019 Portland, Oregon

Filed January 17, 2020 Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit

Judges, and Josephine L. Staton,* District Judge. Opinion by Judge Hurwitz;

Dissent by Judge Staton

* The Honorable Josephine L. Staton, United States District Judge for the CentralDistrict of California, sitting by designation.

4 JULIANA V. UNITED STATES

SUMMARY** Climate Change / Standing

The panel reversed the district court’s interlocutory orders in an action brought by an environmental organization and individual plaintiffs against the federal government, alleging climate-change related injuries to the plaintiffs caused by the federal government continuing to “permit, authorize, and subsidize” fossil fuel; and remanded to the district court with instructions to dismiss for lack of Article III standing.

Some plaintiffs claimed psychological harms, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property. Plaintiffs alleged violations of their constitutional rights, and sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon d ioxid e].”

The panel held that: the record left little basis for denying that climate change was occurring at an increasingly rapid p a c e ; c o p i o u s e x p e r t e v i d e n c e e s t a b l i s h e d t h a t t he unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

JULIANA V. UNITED STATES 5

contribution to climate change was not simply a result of inaction.

The panel rejected the government’s argument that plaintiff s’ claims must proceed , if at all, under the Administrative Procedure Act (“APA”). The panel held that because the APA only allows challenges to discrete agency decisions, the plaintiffs could not effectively pursue their constitutional claims – whatever their merits – under that statute.

The panel considered the three requirements for whether plaintiffs had Article III standing to pursue their constitutional claims. First, the panel held that the district court correctly found that plaintiffs claimed concrete and particularized injuries. Second, the panel held that the district court properly found the Article III causation requirement satisfied for purposes of summary judgment because there was at least a genuine factual dispute as to whether a host of federal policies were a “substantial factor” in causing the plaintiffs’ injuries. Third, the panel held that plaintiffs’ claimed injuries were not redressable by an Article III court. Specifically, the panel held that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches.

The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.

District Judge Staton dissented, and would affirm the district court. Judge Staton wrote that plaintiffs brought suit to enforce the most basic structural principal embedded in

6 JULIANA V. UNITED STATES

our system of liberty: that the Constitution does not condone the Nation’s willful destruction. She would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial.