Keep courts off of the climate policy playground

Keep courts off of the climate policy playground
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Cute kids and climate change make for compelling headlines. But the case of Juliana v. United States is a little too cute for the Constitution and a whole lot too complex for the courts.

After a hearing before a three-judge panel in June, the U.S. Court of Appeals for the Ninth Circuit is presently considering whether to allow a novel case to proceed to trial where a group of children are ambitiously asserting that the federal government is violating their rights by not enacting better policies to deal with climate change.  

Quite simply, these plaintiffs in the Juliana case are asking the judicial branch to tell the elected branches what policies to adopt. Such relief would pervert the courts and deform the Constitution


The most important controversies over the Juliana court case are not about climate change. And the key issues in this court case are not about whether government could or should do more as a policy matter to prevent climate change, abate its impacts or even make up for any potential past bad decisions. The real issue of concern with the Juliana case is about what branches of our government have authority to make policy decisions on climate change (or any other matter of societal preferences). The true stakes are about the preservation of our constitutional system where policy is made in the elected branches, not the courts. 

Imagine the slippery slope if the Juliana plaintiffs’ theory is accepted, almost any group could bring a claim that the government isn’t doing the job they expect it should to protect them, hoping to get a judge to agree and play along. If you aren’t satisfied with the government’s efforts to control gun violence and claim that you are at risk of death or injury as a result, can you ask the courts to order legislatures to adopt gun control measures?

If you are upset with the crime rate in your neighborhood and feel at risk, should you be able to go to court and demand that the courts order the police to arrest more people and empower the court to supervise and oversee the crime control measures of your local elected officials? 

If you were dissatisfied with the Obama administrations positions on enforcing immigration laws, should you have been allowed to go to court and ask the judge to demand that the president build a wall on the border and that Congress must fund it? 

Surely, persons of differing ideological leanings would see the folly in each of these hypothetical calls for court intervention into the political playground. Why should a court case by children on climate change be any better reason to invite the courts to play at politics? 


Constitutional standards exist that prevent the courts from hearing what are called “generalized grievances” like those asserted by the Juliana plaintiffs. Plaintiffs cannot use the courts as a place to complain about all the things they dislike happening in the world or that they dislike about their elected officials responses to problems. 

And individuals certainly cannot run to the courts to present such grievances and get the courts to order the political branches to change their ways. That’s not the purpose of courts and such orders are not within their authority. 

Thus, the courts hear cases brought by plaintiffs with particularized injuries. And, the courts only hear cases where the remedy sought is something they have the power to offer. 

Consequently, the Ninth Circuit should find that the Juliana plaintiffs are barred from proceeding with their case, because they lack at least two key elements in the standing doctrine — particularized injury-in-fact and redressibility. That doctrine safeguards our courts by limiting access to them. 

The Juliana plaintiffs want you to get confused — don’t be. They focus on the intensity of the general harms and risks and the grave threats climate change could pose. Climate change and its risks are real, but not all harms can be resolved in the courts and not all solutions can be found there either. If we focus too much on the harm, the seriousness of the policy issue, and the urgency to find a solution, then we get caught up in the sympathetic stories involved in the case and lose sight of the broader prudential and constitutional reasons for limiting the court’s authority to solve the problem.

Remedying bad conditions in our social or physical environment are core legislative and regulatory functions. And, from the perspective of comparative institutional competency, accountable executive and legislative actors should be charged with finding solutions. 

Determining the extent of the climate change problem, the course of the problem, evaluating solutions and weighing competing considerations in a world of finite resources are all things that require application of expertise best suited to policymakers, not judges.  

Donald J. Kochan is the Parker S. Kennedy professor in Law at Chapman University Dale E. Fowler School of Law in Orange, California.