Lighthiser v. Trump: Another Kids Climate Suit

Last month, environmental activists filed suit against the Trump Administration on behalf of 22 youth alleging that President Trump’s various Executive Orders calling for environmental deregulation and the encouragement of energy production are unconstitutional. Specifically the complaint in Lighthiser v. Trump alleges that Trump’s energy-related EOs “violate the Fifth Amendment substantive due process clause on their face by depriving Plaintiffs of their fundamental rights to life and liberty and are ultra vires in assuming powers reserved to and exercised by Congress through Article I.”

This suit, much like prior “kids climate” cases alleging a judicially enforceable federal constitutional right to climate action, is unlikely to go anywhere (favorable press coverage notwithstanding). There is simply no basis in existing law upon which to claim that there is a fundamental constitutional right to environmental protection and that federal actions encouraging fossil fuel use are subject to strict scrutiny. However rhetorically powerful such claims may be, they represent a profound break from the country’s constitutional tradition and cut against contemporary doctrine. Moreover, this case was filed in the Ninth Circuit, where similar claims have already been found to be nonjusticiable. (State-law based constitutional claims, on the other hand, can present different questions.)

Perhaps aware that the constitutional  claims face tough sledding, the Lighthiser plaintiffs also seek to argue that various actions called for in Trump’s EOs are ultra vires or otherwise beyond the scope of the President’s authority or contrary to existing statutes. Including such claims does not help the plaintiffs challenge the EOs themselves, as the EOs do not purport to command any federal action that is inconsistent with law. There is a chance, however, that some specific claims against specific agency actions could proceed, provided the plaintiffs are able to demonstrate standing. Yet insofar as two other youth plaintiff climate suits have foundered on standing grounds, the outlook for this suit is bleak as well.

As with the prior kids climate suits, Lighthiser v. Trump seems aimed more at the court of public opinion than it is the courts of law.

Prior posts discussing Juliana and the other kids climate cases can be found here.

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