There is no cause of action against the US Government under the Fifth Amendment for Failure to Protect the Global Climate System
February 28, 2019 by Gregory Harned
By Lynn Phan, Staff Contributor
Whenever faced with the decision to declare a “healthful environment” or freedom from harmful contaminants as fundamental rights, federal courts have invariably rejected those claims.
In the new landmark climate change litigation case, Juliana v. United States, Plaintiffs assert that the United States Government violates their fundamental rights under the Fifth Amendment Due Process Clause by failing to take effective action to control greenhouse gas (“GHG”) pollutions while simultaneously promoting fossil fuel production. However, jurisprudence has invariably rejected the notion that there is a fundamental right to a stable climate system.
There is no fundamental right to a climate system that guarantees a particular level of greenhouse gases
The Supreme Court has asserted that the list of fundamental liberties is seldom expanded. The Court has established two primary features of a fundamental rights substantive due process analysis. First, the Due Process Clause only protects fundamental rights that are (1) deeply rooted in the nation’s history and tradition and (2) implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. Second, the Court also requires that substantive due process claims state a “careful description” of the asserted fundamental right.
Plaintiffs’ alleged fundamental right to a healthy and stable climate system is not rooted in our nation’s traditions. Whenever faced with the decision to declare a “healthful environment” or freedom from harmful contaminants as fundamental rights, federal courts have invariably rejected those claims. To the contrary, federal courts have permitted development projects that could cause harm to human health and the environment. A healthy climate system has never been a part of our nation’s traditions, and thus fails to qualify as a fundamental right under the first factor of the Glucksberg test.
Additionally, Plaintiffs fail to provide a “careful description” of a “healthy and stable climate system.” Fundamental rights under the Due Process Clause must be defined in the most circumscribed manner, with central reference to specific historical practices. Merely asserting a broad interest in a healthy and stable climate is not sufficient to provide a “careful description” of a fundamental right. Plaintiffs fail to prove that a stable climate system maintaining a particular GHG level is a fundamental right.
The Government has no obligation to protect Plaintiffs from changes in the global atmospheric climate system
The Due Process Clause does not confer an affirmative right to government aid, even where such aid is necessary to secure life, liberty, or property interests. Two exceptions to this general rule exist (1) where there is a “special relationship” between the government and the injured party, or (2) where the government is responsible for creating the danger.
Neither of these exceptions apply in Juliana. Special relationships arise if the government takes a person into its custody and holds them against their will. In Juliana the Government has not held the Plaintiffs against their will and thus, the special relationship exception does not apply.
Likewise, there is no state-created danger. In order to establish a state-created danger, Plaintiffs must prove: (1) they were a member of a limited, precisely definable group; (2) the Government’s conduct put them at a significant risk of serious, immediate, and proximate harm; 3) the risk was obvious or known to the Government; (4) the Government acted recklessly in conscious disregard of the risk; and (5) the Government’s conduct shocks the conscience. Plaintiffs fail to assert that they are a member of a limited and precisely definable group. A state-created danger must be a special danger that affects “a few potential victims, not a few hundred.” However, there is an indefinite number of people who have been affected by climate change. Plaintiffs brought a claim on behalf of future generations, which is not a limited or precisely definable group but rather, a group of indefinite size.
Furthermore, Plaintiffs fail the second factor of the state-created danger test because the Government’s conduct was not the immediate and proximate cause of their injuries. Government conduct cannot be the immediate and proximate cause of a harm when the harm is of an indefinite range and duration. In Ruiz, the plaintiff’s child died from abuse by a state-licensed daycare operator. Plaintiff brought a claim against the State of Colorado for licensing the daycare without performing mandated criminal background checks on daycare operators. However, the Tenth Circuit dismissed the state-created danger claim and reasoned that an improper licensure of a home daycare did not impose an immediate threat of harm; rather, it presented a threat of an indefinite range and duration. Similarly, the United States’ subsidization of fossil fuel production did not immediately and proximately harm the Plaintiffs; rather, these policies pose threats of an indefinite range and duration. The damages that Plaintiffs suffer are a result of a confluence of decades of emissions from countries across the globe. Indeed, foreign nations produced a vast majority of anthropogenic GHG emissions to date. Thus, Plaintiffs also fail to meet the second element of the state-created danger test.
 Plaintiff’s Complaint, Juliana v. United States 217 F.Supp.3d 1224 (D. Ore. 2016) (No. 6:15-cv-01517-TC), 2015 WL 4747094
 S.F. Chapter of A. Philip Randolph Inst. v. EPA, No. C 07-04936 CRB, 2008 WL 859985, at *7 (N.D. Cal. Mar. 28, 2008).
 See Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1988) (“[W]e have always been reluctant to expand the concept of substantive due process.”) (internal citations and quotation marks omitted); and Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“We must exercise the utmost care whenever we are asked to break new ground [in asserting new fundamental rights]”).
 Glucksberg, 521 U.S. at 720-21.
 See, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) (holding that there is no constitutional right to a healthful environment); S.F. Chapter of A. Philip Randolph Inst., 2008 WL 859985, at *7 (rejecting asserted rights to be free from climate change pollution and to have a certain quality of life); and Pinkney v. Ohio EPA, 375 F. Supp. 305, 310 (N.D. Ohio 1974) (“[T]he Court is unable to rule that the right to a healthful environment is a fundamental right under the Constitution.”).
 See Seacoast Anti-Pollution League of N.H. v. Nuclear Regulatory Comm’n, 690 F.2d 1025 (D.D.C. 1982) (upholding Nuclear Regulatory Commission’s refusal to order hearing to determine whether nuclear generating permit should be suspended, despite evidence the licensee did not have required precautionary radiological emergency); see also Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (upholding Army Corps of Engineers’ decision to issue permit for the creation of valley fills for toxic mining waste disposal).
 Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) (summarizing Glucksberg holding).
 See Lake v. City of Southgate, No. 16-10251, 2017 WL 767879, at *4 (E.D. Mich. Feb. 28, 2017) (holding that broadly asserting an interest in “health” and “right to be free from bodily harm” is not a careful description of a fundamental right).
 Deshaney v. Winnebago Cty. Dept. of Social Servs., 489 U.S. 189, 196 (1989).
 Id. at 199–200.
 Fields v. Abbott, 652 F.3d 886, 891 (8th Cir. 2011).
 Guy v. Lexington-Fayette Urban Cty. Gov’t, 624 Fed. App’x 922, 933 (6th Cir. 2015).
 Estate of Johnson v. Weber, No. CCIV 12-4084, 2014 WL 2002882, at *7 (D.S.D. May 15, 2014); see also Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993) (holding plaintiff’s rape injuries by a student known to be violent two years after he enrolled in her school “too remote a consequence” of state officials’ action or inaction); Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002) (threat of harm must be of “limited range and duration” rather than generally applicable to a broader populace).
 Id. at 1182.