Ninth Circuit Dismisses Kids Climate Case Against Discounting in Cost-Benefit Analysis

Today the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the G. B. v. U.S. EPA kids climate suit. The court seemingly had no trouble resolving this case, as it was only argued on March 5.

In this suit the plaintiffs argued, among other things, that the practice of discounting in assessing the threat of climate change is unconstitutional as it discriminates against younger people and future generations. The court did not reach the substance of this claim, concluding the plaintiffs lacked standing. Specifically, the panel found that the plaintiffs could not satisfy any of standing’s three elements.

Of note, the Ninth Circuit dismissed the case without leave to amend the complaint. While the plaintiffs are likely to seek further review, such as through a petition for rehearing en banc or a petition for certiorari, this should effectively end this case

Judge Milan Smith wrote for the panel, joined by Judges Nelson and Gould. His opinion for the panel begins:

Plaintiffs-Appellants are eighteen minors who sue the U.S. Environmental Protection Agency (EPA) and other federal entities and officials (collectively, the Government) to challenge an economic tool that the EPA sometimes consults in its rulemaking process. Plaintiffs allege that the Government has a policy and practice of promulgating rules regulating greenhouse gas (GHG) emissions in reliance on cost-benefit analyses that “discount” the value of future costs and benefits. Discounting allows agencies like the EPA to translate the future value of money into present-day value, so they can compute the projected effects of a proposed regulation over time. Rooted in the “time value of money,” discounting seeks to account for the economic observation that a dollar today is generally more valuable than a dollar tomorrow.

According to Plaintiffs, the EPA’s use of discounting discriminates against children like them in violation of their constitutional rights because it favors present-day consumption over future consumption, which, Plaintiffs say, advantages adults at the expense of minors. Plaintiffs further allege that GHG regulations predicated on discounted future costs and benefits harm the environment because they allow greater GHG emissions (when compared against hypothetical regulations lacking this predicate), which in turn leads to increased atmospheric temperatures and extreme weather events, ultimately causing Plaintiffs to suffer a litany of downstream harms, such as damage to their homes, respiratory ailments, and anxiety over climate change.

The district court held that Plaintiffs lacked standing to pursue these claims. Rather than satisfying the familiar requirements of injury, causation, and redressability, the district court determined that Plaintiffs’ lawsuit stumbled on all three. In particular, the court concluded that Plaintiffs’ discrimination theory did not assert a cognizable injury-infact; that Plaintiffs’ alleged environmental injuries are not fairly traceable to the Government’s use of discounting; and that Plaintiffs’ request for declaratory relief is unlikely to redress their asserted harms. Because of these deficiencies, the district court declined to grant Plaintiffs a third opportunity to plead their claims. We agree with the district court and now affirm.

A different panel of the Ninth Circuit (Owens, Van Dyke, and Sung) will hear oral argument in yet another kids climate case, Trump v. Lighthiser, on Monday.