By Clark Mindock
(Reuters) -A U.S. appeals court on Wednesday said a lawsuit filed by 21 young people claiming the U.S. government's energy policies violate their rights to be protected from climate change must be dismissed, this time for good.
A three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said in a five-page order that the case should have been dismissed after the court first weighed in on the matter in 2020, when it said courts could not mandate broad policy changes that are better left to Congress and the executive branch.
While the young plaintiffs have since trimmed the lawsuit to seek only a declaration that their rights have been violated, the 9th Circuit said lawsuits must address harms that can be remedied by courts and such a declaration would not directly help the plaintiffs.
The lower court overseeing the case dismissed the lawsuit shortly after receiving the panel's order.
The plaintiffs are considering asking an 11-judge "en banc" panel of the 9th Circuit to reconsider the decision, Julia Olson, an attorney for the plaintiffs at the non-profit law firm Our Children’s Trust, said. A similar request after the 2020 ruling was denied.
"This is a tragic and unjust ruling, but it is not over," Olson said. "A declaration of our constitutional rights is one of the few things that has moved our nation to greater justice and equality throughout history."
The U.S. Department of Justice declined to comment.
The plaintiffs had argued in their 2015 lawsuit that the government has permitted, authorized and subsidized fossil fuel extraction and consumption despite knowing those actions cause catastrophic global warming.
They said climate change exacerbates things like wildfires, drought and flooding, which in turn jeopardizes their health and property. By contributing to climate change, the plaintiffs said U.S. energy polices violate their rights to due process and equal protection under the U.S. Constitution.
The young people were between the ages of 8 and 19 when they filed their lawsuit, Juliana v. USA.
After the 9th Circuit’s 2020 order dismissing the case, a federal judge in Eugene, Oregon, allowed the youth to amend their lawsuit.
The U.S. government opposed the plaintiffs' bid, saying it was "substantially identical" to issues the parties already litigated.
Numerous other youth-led climate lawsuits have been filed in recent years by Our Children’s Trust, similarly arguing state and federal policies promoting fossil fuels violate the rights of young people.
While several of those have been dismissed, a Montana state judge last year ruled in favor of a group of young people who said the state's permitting of fossil fuel projects violates a 1972 amendment to the Montana constitution requiring the state to protect and improve the environment.
A similar lawsuit by a group of young Hawaiians based on that state's constitution is due to go to trial in June.
The U.S. Constitution contains no such explicit provision. A group of young people have also filed a lawsuit against the U.S. Environmental Protection accusing the agency of "intentionally” discriminating against U.S. children by allowing the release of dangerous levels of climate change-causing greenhouse gas pollution in California federal court.