January 30, 2023

Volume XIII, Number 30


January 27, 2023

Subscribe to Latest Legal News and Analysis

Latest Kids’ Climate Suit Development Increases Supreme Court Speculation

The latest development in climate change litigation came out of last week’s Eastern District of Pennsylvania dismissal – spurring more speculation that these issues will eventually be appealed to and decided by the U.S. Supreme Court. This is one of several novel cases around the country attempting to hold the federal government responsible for climate change.

The decision comes on the heels of a similar, closely watched, and highly publicized suit filed by 21 minors – Juliana v. U.S. – in which an Oregon federal judge denied a comparable motion to dismiss, but granted interlocutory appeal, opening the door for it to be presented to the Ninth Circuit.

In the Pennsylvania case, Clean Air Council v. U.S., two minors and the Clean Air Council claimed that the federal government violated their constitutional rights by rolling back environmental laws and regulations in a way that would increase the frequency or intensity of the life-threatening effects of climate change. The court dismissed the case last week, rejecting plaintiffs’ standing theories and claims for relief.

No Standing to Bring Suit

The court dismissed the case for lack of jurisdiction. The court held that the Clean Air Council did not have standing to bring the suit, because it did not allege any of its members were injured by the defendant’s actions. It also concluded the two children serving as plaintiffs did not have standing.

In doing so, the court reached several conclusions relevant to standing in any citizen suit:

  1. Anxiety over climate change is not a particularized injury that would allow an individual to have standing in the suit.

  2. The chain of events between the government’s actions of rolling back regulations and statutes and the plaintiffs’ alleged physical injuries was so attenuated that the alleged injuries were not “imminent or certain” enough to allow for standing.

  3. The traceability prong of standing was not satisfied, because the plaintiffs did not sufficiently allege that the injury they faced could be traced to the federal government’s actions rather than actual sources of greenhouse gas emissions, or that their injuries, which existed before the administration’s actions, have actually been exacerbated by those actions.

No Legally Cognizable Claim

The court also rejected plaintiffs’ legal theories asserting a violation of their constitutional rights.  It held that there is no due process right to a life-sustaining climate system, nor did the government’s actions create any unconstitutional danger or violate any right to life or bodily integrity held by plaintiffs. Similarly rejected was plaintiffs’ novel legal theory that the federal government has “an affirmative duty to protect all land and resources with the United States.”

Noting that thus far only one court, in Oregon, has recognized this theory, the court said it found the theory unpersuasive and expressed deep hesitance to assume the authority to control executive action without much further explanation. Given this decision and the pending Ninth Circuit appeal in the Juliana case, it continues to be likely that these issues will eventually be appealed to the Supreme Court.

© 2023 ArentFox Schiff LLPNational Law Review, Volume IX, Number 58

About this Author


Bina Joshi practices environmental law. Her experience includes a wide range of litigation, regulatory and transactional matters.