Earlier this month, the 9th Circuit Court of Appeals affirmed dismissal of plaintiffs’ claims in G.B. v. EPA, another of the children’s climate cases.  The claims in G.B. differed from those recently dismissed in Juliana v. United States.  As the opinion in G.B. noted, the plaintiffs in Juliana:

Challenged federal policy far more sweeping in scale, including the Government’s decades-long practices of permitting, authorizing, and subsidizing fossil fuel extraction, development, consumption, and exportation, thus causing “atmospheric CO2  concentrations to escalate to levels unprecedented in human history.” 

The complaint in G.B., on the other hand, was much more focused.  The claims in G.B. centered on the government’s decision in cost-benefit analyses, including analyses of the social cost of carbon, to discount the value of future costs and benefits.  In short, it would not be off the mark to describe the allegations in the complaint as basically boiling down to an assertion that application of standard economic theory constitutes a violation of plaintiffs’ equal protection rights.

I don’t mean to make light of plaintiffs’ claims and there are important moral questions embedded in a determination regarding how to value climate damages that occur many years from now.  However, not every moral dilemma involves valid claims for deprivation of constitutional rights, and the Court in G.B. had no difficulty concluding that the plaintiffs’ claims failed to satisfy the requirements to demonstrate plaintiffs’ standing.  

Given the paralysis in Congress, I expect that plaintiffs will continue to bring variations on the claims in Juliana and G.B.  Moreover, state and local government climate damage cases stand on different – though perhaps also shaky – legal ground.  However, at least for the near future, it is difficult to see these types of claims surviving motions to dismiss.