On October 24, 2019, Professor Tseming Yang’s Torts and Professor Christopher Bacon’s Environmental Law and Policy classes were treated to a presentation from Santa Clara Law Professor Emeritus Kenneth Manaster and Phil Gregory JD/MBA ‘80 on the case of Juliana v. the United States, of which Gregory is a co-lead counsel for the plaintiffs.
Juliana is a novel environmental lawsuit that seeks to hold the government accountable for the cumulative impact on the environment from decades of federal support for carbon-dioxide-increasing activities. The 21 plaintiffs, aged 12 to 23, say the planet-threatening environmental consequences were foreseen decades ago, and violate their constitutional right to “life, liberty, and property.”
The presentation was sponsored by tUrn, a program at Santa Clara University that offers an invitation to all members of higher education institutions and partner networks to lean in to the climate crisis. According to Kristin Kusanovich, who introduced the speakers, last week 500 SCU staff, faculty, and students participated in SCU tUrn events.
The professors and Gregory explored the legal basis for Juliana and other legal actions seeking to protect the environment.
Professor Yang shared a crucial torts perspective, emphasizing that Juliana was focused on the failure of the federal government to disclose the consequences of fossil-fuel emissions on adults and children. As a result of pressure from corporate interests on government, important research—and resulting sustainable outcomes—have been pushed out of reach.
Professor Manaster noted that some have offered the term “climate destabilization,” as an alternative to “climate change” or even “global warming.” The phrase highlights the breadth and severity of what we are dealing with, he said.
He noted that most environmental law, since its early beginnings in 1970, has been code-based, rather than case-based (like Constitutional law), and that there’s been a colossal volume of environmental legislation enacted since that time.
Those seeking to challenge under the existing statues have traditionally followed four legal paths, Manaster noted.
- Common law (public nuisance cases),
- Judicial review of a regulatory agency action (administrative law),
- Direct judicial enforcement (state attorney general or USDOJ asks court for enforcement),
- Violation of constitutional rights or principles (claims from states/individuals/classes/groups).
He said, the most interesting lawsuits are the extrapolations of preexisting legal theories, “Since the modern inception of this field…lawyers have been very creative in borrowing from old law or seemingly unrelated law.” As an example, initial litigation against auto emissions was based largely on the legal principles of antitrust law. More recently, lawyers have brought cases in animals’ or monuments’ name, such as a species of birds native to Hawaii, Mineral King valley, and the Klamath River both here in California. Professor Manaster also shared his work on a case that resulted from a serious leak of chlorine gas, and that he regretted not using strict liability for abnormally dangerous activities doctrine in that case. He urged the attendees and students to consider which kind of case, or kinds of case Juliana could be, and reminded us that ultimately the courts will decide.
Phil Gregory JD/MBA ‘80 started with a quote from U.S. District Judge Ann Aiken, referring to Juliana as “no ordinary lawsuit,” and emphasized that this case stemmed from the existential threat posed by climate change and the fact that neither Congress nor the Executive Branch will address the problem, so it’s up to the courts. The 21 young plaintiffs are not seeking any remuneration, he said, but rather asking for the courts to force the government to take scientific-based action to prevent climate change.
The Fourth National Climate Assessment, released on Black Friday 2018 shows that the federal government’s actions alone accounted for more than 20% of all U.S. emissions. If the federal government had altered its policies around climate change back in the 80s or 90s,, the amount of CO2 being emitted annually could have been drastically reduced.
When Gregory brought this case originally back in 2015, the lead counsel for defendants, the Obama administration, was John Cruden JD ‘74, another Santa Clara Law alumnus. More fossil fuels were taken out of the ground during the Obama Administration than any presidential administration before or since, Gregory noted.
Juliana relies on a number of legal arguments, Gregory told the audience. The underlying principle is the Public Trust doctrine, the Justinian legal code that acknowledges the fiduciary obligation of the government to preserve essential natural resources for present and future generations. The Constitutional legal basis is the Fifth Amendment, which protects the individual’s right to life, liberty, and property, and the requirements of equal protection and due process for government action against those rights. And under the State Created Danger doctrine, where the government has created a danger that infringes upon those rights, the Constitutional protections of the individual’s right to substantive due process under the Fifth Amendment is at risk.
Gregory walked the audience through the plaintiff’s evidence regarding what the federal government knew, when it knew it, and what actions were taken in response to that knowledge. For instance, a memorandum from 1965, from the Executive office of Lyden B. Johnson acknowledged the federal government’s awareness that CO2 would cause irreparable harm and destabilization of the Earth’s atmosphere. Despite many such dire warnings and knowledge of the impending threat, fossil-fuel production has more than doubled since Carter was in office.
The case now awaits a key ruling from a 9th Circuit panel—one of numerous legal hurdles at the appeals and even Supreme Court level since the case was cleared for trial back in late 2016. Gregory directed those interested in learning more about the case or how they can support to visit Our Children’s Trust and Join Juliana.
Phil Gregory JD/MBA ‘80
Gregory was awarded the 2018 Edwin J. Owens Lawyer of the Year, an award given to a distinguished member of the law school community who is devoted to the highest ideals of the profession and has made significant contributions to the University, the community, and the law. Previously a partner at Cotchett, Pitre & McCarthy, LLP, Gregory recently opened his own firm, Gregory Law Group. He shared that the inspiration for his hard work on this case is his granddaughter, who Gregory hopes to be able to tell one day about his work on halting climate change.
Professor Kenneth Manaster
Manaster, a long time professor at the law school, and emeritus as of a few years ago. Manaster started in late 1960s as Assistant Attorney General for the Chicago office of the Environmental Control Division. He also served as an attorney for then John Paul Stevens, while in Illinois, and wrote “Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens,” which was recently turned into a documentary film. Manaster’s most recently published work, “The American Legal System and Civic Engagement: Why We All Should Think Like Lawyers,” asserts that ordinary citizens can form their opinions on public issues more intelligently, confidently, and responsibly if they have some guidance on how to do it.