Youth plaintiffs in the U.S. recently found the limits of the judicial system in the 9th Circuit. The plaintiffs brought a suit challenging how federal agencies conduct cost-benefit analysis. Since the 90’s, agencies have considered future costs at a “discounted” rate to account for the public’s preference for immediate benefits. The Biden administration removed this “discount” from the cost-benefit analysis of GHG emissions. The current administration reverted the analysis back, restoring the “discount.” This reversion was challenged by plaintiffs who argued it gives a discriminatory preference to living adults and not future adults. The 9th Circuit found that the cost-benefit analysis was too far removed from the impacts to Plaintiffs, stating:
“Rather than challenging a specific governmental action targeting Plaintiffs directly, Plaintiffs attack non-binding administrative guidance that may or may not be employed in the future to set in motion a lengthy chain of events that will allegedly result in their downstream harm. And rather than concluding that Plaintiffs’ asserted harm is not redressable because some distinct harm is legally deficient, we hold that Plaintiffs have no declaratory-judgment remedy because it is unlikely to mitigate the only asserted injuries at issue”
Yesterday, I wrote about climate litigation that got shot down in Germany. In that case, the German courts found that it was beyond their authority to issue policy decisions mandating emissions reductions among specific automakers. These cases have parallels as they both ask the courts for relief beyond their powers. In the current case, the youth plaintiffs are ultimately seeking a government that is more responsive to climate change. Part of the reason the 9th Circuit dismissed the claim is that changing the cost-benefit rules doesn’t guarantee that outcome. The Plaintiffs may be correct. Their version of events may come to pass, and they may suffer a redressable injury as a result. However, there are too many “what-ifs” in the way.
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